EXHIBIT 10.41
PLEDGE AND SECURITY AGREEMENT
DATED AS OF SEPTEMBER 19, 2002
AMONG
SWIFT & COMPANY
AS A GRANTOR
AND
EACH OTHER GRANTOR
FROM TIME TO TIME PARTY HERETO
AND
CITICORP USA, INC.
AS ADMINISTRATIVE AGENT
WEIL, GOTSHAL & XXXXXX LLP
000 XXXXX XXXXXX
XXX XXXX, XXX XXXX 00000-0000
TABLE OF CONTENTS
PAGE
ARTICLE I. DEFINED TERMS.........................................................................1
Section 1.1 Definitions..................................................................1
Section 1.2 Certain Other Terms..........................................................5
ARTICLE II. GRANT OF SECURITY INTEREST............................................................6
Section 2.1 Collateral...................................................................6
Section 2.2 Grant of Security Interest in Collateral.....................................7
Section 2.3 Cash Collateral Accounts.....................................................7
ARTICLE III. REPRESENTATIONS AND WARRANTIES........................................................8
Section 3.1 Title; No Other Liens........................................................8
Section 3.2 Perfection and Priority......................................................8
Section 3.3 Jurisdiction of Organization; Chief Executive Office.........................8
Section 3.4 Inventory and Equipment......................................................8
Section 3.5 Pledged Collateral...........................................................8
Section 3.6 Accounts.....................................................................9
Section 3.7 Intellectual Property........................................................9
Section 3.8 Deposit Accounts; Control Accounts..........................................10
Section 3.9 Commercial Tort Claims......................................................10
Section 3.10 Buyers, Commission Merchants and Selling Agents.............................10
ARTICLE IV. COVENANTS............................................................................10
Section 4.1 Generally...................................................................10
Section 4.2 Maintenance of Perfected Security Interest; Further Documentation...........10
Section 4.3 Changes in Locations, Name, Etc.............................................11
Section 4.4 Pledged Collateral..........................................................12
Section 4.5 Control Accounts............................................................13
Section 4.6 Accounts....................................................................13
Section 4.7 Delivery of Instruments and Chattel Paper...................................14
Section 4.8 Intellectual Property.......................................................14
Section 4.9 Vehicles....................................................................16
Section 4.10 Payment of Obligations......................................................16
Section 4.11 Notice of Commercial Tort Claims............................................16
ARTICLE V. REMEDIAL PROVISIONS..................................................................17
Section 5.1 Code and Other Remedies.....................................................17
Section 5.2 Accounts and Payments in Respect of General Intangibles.....................17
Section 5.3 Pledged Collateral..........................................................18
Section 5.4 Proceeds to be Turned Over To Administrative Agent..........................19
Section 5.5 Registration Rights.........................................................19
Section 5.6 Deficiency..................................................................20
ARTICLE VI. THE ADMINISTRATIVE AGENT.............................................................21
Section 6.1 Administrative Agent's Appointment as Attorney-in-Fact......................21
Section 6.2 Duty of Administrative Agent................................................22
Section 6.3 Execution of Financing Statements...........................................23
Section 6.4 Authority of Administrative Agent...........................................23
ARTICLE VII. MISCELLANEOUS........................................................................23
Section 7.1 Amendments in Writing.......................................................23
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TABLE OF CONTENTS
(CONTINUED)
PAGE
Section 7.2 Notices.....................................................................23
Section 7.3 No Waiver by Course of Conduct; Cumulative Remedies.........................23
Section 7.4 Successors and Assigns......................................................24
Section 7.5 Counterparts................................................................24
Section 7.6 Severability................................................................24
Section 7.7 Section Headings............................................................24
Section 7.8 Entire Agreement............................................................24
Section 7.9 Governing Law...............................................................25
Section 7.10 Additional Grantors.........................................................25
Section 7.11 Release of Collateral.......................................................25
Section 7.12 Reinstatement...............................................................26
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TABLE OF CONTENTS
(CONTINUED)
ANNEXES AND SCHEDULES
Annex 1 Form of Deposit Account Control Agreement
Annex 2 Form of Control Account Agreement
Annex 3 Form of Pledge Amendment
Annex 4 Form of Joinder Agreement
Annex 5 Form of Short Form Copyright Security Agreement
Annex 6 Form of Short Form Patent Security Agreement
Annex 7 Form of Short Form Trademark Security Agreement
Schedule 1 Jurisdiction of Organization; Principal Executive Office
Schedule 2 Pledged Collateral
Schedule 3 Filings
Schedule 4 Location of Inventory and Equipment
Schedule 5 Intellectual Property
Schedule 6 Bank Accounts; Control Accounts
Schedule 7 Commercial Tort Claims
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PLEDGE AND SECURITY AGREEMENT, dated as of September 19, 2002,
by S&C Holdco 3, Inc. ("Holdings"), Swift & Company (the "Company"), and each of
the other entities listed on the signature pages hereof or that becomes a party
hereto pursuant to Section 7.10 (Additional Grantors) (collectively with
Holdings and the Company, the "Grantors," and each a "Grantor"), in favor of
Citicorp USA, Inc. ("Citicorp"), as agent for the Secured Parties (as defined in
the Credit Agreement referred to below) (in such capacity, the "Administrative
Agent").
WITNESSETH:
WHEREAS, pursuant to the Credit Agreement, dated as of
September 19, 2002 (as the same may be amended, restated, supplemented or
otherwise modified from time to time, the "Credit Agreement"), among the
Company, S&C Australia Holdco Pty. Ltd., ("Australian Holdings"), Australia Meat
Holdings Pty. Ltd. (the "Australian Company," together with Australian Holdings,
the "Australian Borrowers," and 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, 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 the
Issuers have severally agreed to make extensions of credit to the Borrowers upon
the terms and subject to the conditions set forth therein;
WHEREAS, the Grantors are party to the Domestic Guaranty
pursuant to which (i) the Company has guaranteed the Obligations of the
Australian Borrowers and (ii) each other Grantor has guaranteed the Obligations
of all the Borrowers; and
WHEREAS, it is 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 that the Grantors shall have executed and
delivered this Agreement to the Administrative Agent;
NOW, THEREFORE, in consideration of the premises and to induce
the Lenders, the Issuers and the Administrative Agent to enter into the Credit
Agreement and to induce the Lenders and the Issuers to make their respective
extensions of credit to the Borrowers thereunder, each Grantor hereby agrees
with the Administrative Agent as follows:
ARTICLE I DEFINED TERMS
SECTION 1.1 DEFINITIONS
(a) Unless otherwise defined herein, terms defined in the
Credit Agreement and used herein have the meanings given to them in the Credit
Agreement.
(b) Terms used herein that are defined in the UCC have the
meanings given to them in the UCC, including the following terms (which are
capitalized herein):
PLEDGE AND SECURITY AGREEMENT
SWIFT & COMPANY
"Account Debtor"
"Accounts"
"Certificated Security"
"Chattel Paper"
"Commercial Tort Claim"
"Commodity Account"
"Commodity Intermediary"
"Deposit Account"
"Documents"
"Entitlement Holder"
"Entitlement Order"
"Equipment"
"Farm Products"
"Financial Asset"
"General Intangibles"
"Instruments"
"Inventory"
"Investment Property"
"Letter-of-Credit Right"
"Payment Intangibles"
"Proceeds"
"Securities Account"
"Securities Intermediary"
"Security"
"Security Entitlement"
(c) The following terms shall have the following meanings:
"Additional Pledged Collateral" means any Pledged Collateral
acquired by any Grantor after the date hereof, including (i) all Stock and Stock
Equivalents of any Person that are acquired by any Grantor after the date
hereof, together with all certificates or other instruments representing any of
the foregoing; all Security Entitlements of any Grantor in respect of any of the
foregoing, (ii) all additional indebtedness from time to time owed to any
Grantor by any obligor on the Pledged Instruments and the instruments evidencing
such indebtedness and (iii) all interest, cash, instruments and other property
or Proceeds from time to time received, receivable or otherwise distributed in
respect of or in exchange for any of the foregoing. "Additional Pledged
Collateral" may be General Intangibles or Investment Property.
"Agreement" means this
Pledge and Security Agreement.
"Approved Securities Intermediary" means a Securities
Intermediary or Commodity Intermediary selected or approved by the
Administrative Agent and with respect to which a Grantor has delivered to the
Administrative Agent an executed Control Account Agreement.
"Cash Collateral Account" means any Deposit Account or
Securities Account established by the Administrative Agent in which cash and
Cash Equivalents may from time to time be on deposit or held therein as provided
in Section 5.2 (Accounts and Payments in Respect of General Intangibles) or 5.4
(Proceeds to be Turned Over To Administrative Agent) or the Credit Agreement.
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PLEDGE AND SECURITY AGREEMENT
SWIFT & COMPANY
"Clear Title" means the U.S. Department of Agriculture program
for enforcing UCC security interests in Farm Products against buyers in the
ordinary course, pursuant to Section 1324 of the United States Food Security Act
of 1985, as amended.
"Collateral" has the meaning specified in Section 2.1
(Collateral).
"Control Account" means a Securities Account or Commodity
Account that is the subject of an effective Control Account Agreement and that
is maintained by any Grantor with an Approved Securities Intermediary. "Control
Account" includes all Financial Assets held in a Securities Account or a
Commodity Account and all certificates and instruments, if any, representing or
evidencing the Financial Assets contained therein.
"Control Account Agreement" means a letter agreement,
substantially in the form of Annex 2 (Form of Control Account Agreement) (with
such changes as may be agreed to by the Administrative Agent), executed by the
relevant Grantor, the Administrative Agent and the relevant Approved Securities
Intermediary.
"Copyright Licenses" means any written agreement naming any
Grantor as licensor or licensee granting any right under any Copyright,
including the grant of any right to copy, publicly perform, create derivative
works, manufacture, distribute, exploit or sell materials derived from any
Copyright.
"Copyrights" means (a) all copyrights arising under the laws
of the United States, any other country or any political subdivision thereof,
whether registered or unregistered and whether published or unpublished, all
registrations and recordings thereof and all applications in connection
therewith, including all registrations, recordings and applications in the
United States Copyright Office or in any foreign counterparts thereof, and (b)
the right to obtain all renewals thereof.
"Deposit Account Control Agreement" means a letter agreement,
substantially in the form of Annex 1 (Form of Deposit Account Control Agreement)
(with such changes as may be agreed to by the Administrative Agent), executed by
the Grantor, the Administrative Agent and the relevant financial institution.
"Domestic Secured Obligations" means, with respect to any
Grantor, the Secured Obligations of such Grantor (other than in respect of such
Grantor's guaranty of the Obligations of the Australian Borrowers).
"Intellectual Property" means, collectively, all rights,
priorities and privileges of any Grantor relating to intellectual property,
whether arising under United States, multinational or foreign laws or otherwise,
including Copyrights, Copyright Licenses, Patents, Patent Licenses, Trademarks,
Trademark Licenses and trade secrets, Internet domain names and all rights to
xxx at law or in equity for any infringement or other impairment thereof,
including the right to receive all proceeds and damages therefrom.
"Intercompany Notes" means any promissory note (including the
Australian Intercompany Note) evidencing loans made by any Grantor or any of its
Subsidiaries to any of its Subsidiaries or to another Grantor.
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PLEDGE AND SECURITY AGREEMENT
SWIFT & COMPANY
"LLC" means each limited liability company in which a Grantor
has an interest, including those set forth on Schedule 2 (Pledged Collateral).
"LLC Agreement" means each operating agreement with respect to
an LLC, as each agreement has heretofore been, and may hereafter be, amended,
restated, supplemented or otherwise modified from time to time.
"Material Intellectual Property" means Intellectual Property
owned by or licensed to a Grantor and material to such Grantor's business.
"Non-U.S. Person" means any Person that is not a Domestic
Person.
"Packers and Stockyard Act" means the United States Packers
and Xxxxxxxxxx Xxx, 0000, as amended (7 U.S.C. Section 181-231).
"Partnership" means each partnership in which a Grantor has an
interest, including those set forth on Schedule 2 (Pledged Collateral).
"Partnership Agreement" means each partnership agreement
governing a Partnership, as each such agreement has heretofore been, and may
hereafter be, amended, restated, supplemented or otherwise modified.
"Patents" means (a) all letters patent of the United States,
any other country or any political subdivision thereof and all reissues and
extensions thereof, (b) all applications for letters patent of the United States
or any other country and all divisions, continuations and continuations-in-part
thereof and (c) all rights to obtain any reissues or extensions of the
foregoing.
"Patent License" means all agreements, whether written or
oral, providing for the grant by or to any Grantor of any right to manufacture,
have made, use, import, sell or offer for sale any invention covered in whole or
in part by a Patent.
"Pledged Certificates" means all Certificated Securities and
any other Stock and Stock Equivalent of a Person evidenced by a certificate,
Instrument or other equivalent document, in each case owned by any Grantor,
including all Stock listed on Schedule 2 (Pledged Collateral).
"Pledged Collateral" means, collectively, the Pledged
Instruments, the Pledged Interests, any other Investment Property of any Grantor
(other than Investment Property whose value, in the aggregate, does not exceed
$100,000), all certificates or other instruments representing any of the
foregoing and all Security Entitlements of any Grantor in respect of any of the
foregoing. Pledged Collateral may be General Intangibles or Investment Property.
"Pledged Instruments" means all right, title and interest of
any Grantor in Instruments evidencing any Indebtedness owed to such Grantor,
including all Indebtedness described on Schedule 2 (Pledged Collateral), issued
by the obligors named therein.
"Pledged Interests" means all Pledged Certificates and all
Pledged Uncertificated Interests.
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PLEDGE AND SECURITY AGREEMENT
SWIFT & COMPANY
"Pledged Uncertificated Interests" means any Stock or Stock
Equivalent of any Person that is not a Pledged Certificate, including all right,
title and interest of any Grantor as a limited or general partner in any
Partnership or as a member of any LLC and all right, title and interest of any
Grantor in, to and under any Partnership Agreement or LLC Agreement to which it
is a party.
"Securities Act" means the Securities Act of 1933, as amended.
"Trademark License" means any agreement, whether written or
oral, providing for the grant by or to any Grantor of any right to use any
Trademark.
"Trademarks" means (a) all trademarks, trade names, corporate
names, company names, business names, fictitious business names, trade styles,
service marks, logos and other source or business identifiers, and, in each
case, all goodwill associated therewith, whether now existing or hereafter
adopted or acquired, all registrations and recordings thereof and all
applications in connection therewith, in each case whether in the United States
Patent and Trademark Office or in any similar office or agency of the United
States, any State thereof or any other country or any political subdivision
thereof, or otherwise, and all common-law rights related thereto, and (b) the
right to obtain all renewals thereof.
"UCC" means the Uniform Commercial Code as from time to time
in effect in the State of
New York; provided, however, that, in the event that,
by reason of mandatory provisions of law, any of the attachment, perfection or
priority of the Administrative Agent's and the Secured Parties' security
interest in any Collateral is governed by the Uniform Commercial Code as in
effect in a jurisdiction other than the State of
New York, the term "UCC" shall
mean the Uniform Commercial Code as in effect in such other jurisdiction for
purposes of the provisions hereof relating to such attachment, perfection or
priority and for purposes of definitions related to such provisions.
"Vehicles" means all vehicles covered by a certificate of
title law of any state.
SECTION 1.2 CERTAIN OTHER TERMS
(a) 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 mean "to but excluding" and the
word "through" means "to and including."
(b) The terms "herein," "hereof," "hereto" and "hereunder" and
similar terms refer to this Agreement as a whole and not to any particular
Article, Section, subsection or clause in this Agreement.
(c) References herein to an Annex, Schedule, Article, Section,
subsection or clause refer to the appropriate Annex or Schedule to, or Article,
Section, subsection or clause in this Agreement.
(d) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such terms.
(e) Where the context requires, provisions relating to any
Collateral, when used in relation to a Grantor, shall refer to such Grantor's
Collateral or any relevant part thereof.
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PLEDGE AND SECURITY AGREEMENT
SWIFT & COMPANY
(f) Any reference in this Agreement to a Loan Document shall
include all appendices, exhibits and schedules thereto, and, unless specifically
stated otherwise all amendments, restatements, supplements or other
modifications thereto, and as the same may be in effect at any time such
reference becomes operative.
(g) The term "including" means "including without limitation"
except when used in the computation of time periods.
(h) The terms "Lender," "Issuer," "Administrative Agent" and
"Secured Party" include their respective successors.
(i) References in this Agreement to any statute shall be to
such statute as amended or modified and in effect from time to time.
ARTICLE II GRANT OF SECURITY INTEREST
SECTION 2.1 COLLATERAL
For the purposes of this Agreement, all of the following
property now owned or at any time hereafter acquired by a Grantor or in which a
Grantor now has or at any time in the future may acquire any right, title or
interests is collectively referred to as the "Collateral":
(a) all Accounts;
(b) all Chattel Paper;
(c) all Deposit Accounts (including all Cash Collateral
Accounts);
(d) all Documents;
(e) all Equipment;
(f) all Farm Products;
(g) all General Intangibles (including Payment Intangibles);
(h) all Instruments (including the Intercompany Notes);
(i) all Inventory;
(j) all Investment Property;
(k) all Letter-of-Credit Rights;
(l) all Vehicles;
(m) the Commercial Tort Claims described on Schedule 7
(Commercial Tort Claims) and on any supplement thereto received by the
Administrative Agent pursuant to Section 4.11 (Notice of Commercial Tort
Claims);
(n) all books and records pertaining to the other property
described in this Section 2.1;
(o) all other goods and personal property of such Grantor,
whether tangible or intangible and wherever located;
(p) all property of any Grantor held by the Administrative
Agent or any other Secured Party, including all property of every description,
in the possession or custody of or
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PLEDGE AND SECURITY AGREEMENT
SWIFT & COMPANY
in transit to the Administrative Agent or such Secured Party for any purpose,
including safekeeping, collection or pledge, for the account of such Grantor or
as to which such Grantor may have any right or power; and
(q) to the extent not otherwise included, all Proceeds of each
of the foregoing.
SECTION 2.2 GRANT OF SECURITY INTEREST IN COLLATERAL
Each Grantor, as collateral security for the full, prompt and
complete payment and performance when due (whether at stated maturity, by
acceleration or otherwise) of the Secured Obligations of such Grantor, hereby
collaterally assigns, mortgages, pledges and hypothecates to the Administrative
Agent for the benefit of the Secured Parties, and grants to the Administrative
Agent for the benefit of the Secured Parties a lien on and security interest in,
all of its right, title and interest in, to and under the Collateral of such
Grantor; provided, however, that only the outstanding Voting Stock of a direct
Subsidiary of such Grantor that is not a Domestic Person possessing (together
with any other Grantor) up to but not exceeding 65% of the voting power of all
classes of Voting Stock of such Subsidiary shall be deemed to be pledged
hereunder to secure the Domestic Secured Obligations of such Grantor; and
provided, further, that (a) the foregoing grant shall not include any Collateral
to the extent that the consent of any Person that is not an Affiliate of such
Grantor (other than a Governmental Authority) is required under any valid and
enforceable Contractual Obligation of any Loan Party for such grant and such
consent has not been obtained despite such Grantor's commercially reasonable
efforts to obtain it, provided, however, that such exclusion shall operate only
for so long as and only to the extent that (i) such consent as not been
obtained, (ii) the provision in the Contractual Obligation of such Grantor
requiring such consent remains valid and enforceable and is not otherwise deemed
ineffective by applicable Requirements of Law and (iii) notwithstanding the
foregoing in this clause (a), such grant shall include the right to receive any
payment of money (including General Intangibles for money due or to become due)
from, and any Proceeds, products, offspring, accessions, rents, profits, income,
benefits, substitutions and replacements of, any such Collateral and (b) should
any Collateral no longer be excluded pursuant to clause (a) above, the
Administrative Agent shall be deemed to have, and all times after the date
hereof to have had, a security interest in such Collateral.
SECTION 2.3 CASH COLLATERAL ACCOUNTS
The Administrative Agent has established a Deposit Account at
Citibank, N.A., designated as "Citicorp USA, Inc. - Swift & Company
Concentration Account". The Administrative Agent may establish one or more other
Deposit Accounts and one or more Securities Accounts with such depositaries and
Securities Intermediaries as it in its sole discretion shall determine. Each
such account shall be in the name of the Administrative Agent (but may also have
words referring to the respective Borrower and the account's purpose). The
Company agrees that each such account shall be under the sole dominion and
control of the Administrative Agent. The Administrative Agent shall be the
Entitlement Holder with respect to each such Securities Account and the only
Person authorized to give Entitlement Orders with respect thereto.
ARTICLE III REPRESENTATIONS AND WARRANTIES
To induce the Lenders, the Issuers and the Administrative
Agent to enter into the Credit Agreement, each Grantor hereby represents and
warrants each of the following to the Administrative Agent, the Lenders, the
Issuers and the other Secured Parties:
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PLEDGE AND SECURITY AGREEMENT
SWIFT & COMPANY
SECTION 3.1 TITLE; NO OTHER LIENS
Except for the Lien granted to the Administrative Agent
pursuant to this Agreement and the other Liens permitted to exist on the
Collateral under the Credit Agreement, such Grantor is the record and beneficial
owner of the Pledged Collateral pledged by it hereunder constituting Instruments
or certificated securities, is the Entitlement Holder of all such Pledged
Collateral constituting Investment Property held in a Securities Account and has
rights in or the power to transfer each other item of Collateral in which a Lien
is granted by it hereunder, free and clear of any Lien.
SECTION 3.2 PERFECTION AND PRIORITY
The security interest granted pursuant to this Agreement shall
constitute a valid and continuing perfected security interest in favor of the
Administrative Agent in the Collateral for which perfection is governed by the
UCC or filing with the United States Copyright Office or with the United States
Patent and Trademark Office upon (i) the completion of the filings and other
actions specified on Schedule 3 (Filings) (which, in the case of all filings and
other documents referred to on such schedule, have been delivered to the
Administrative Agent in completed and duly executed form), (ii) the delivery to
the Administrative Agent of all Collateral consisting of Instruments and
certificated securities, in each case properly endorsed for transfer to the
Administrative Agent or in blank, (iii) the execution of Control Account
Agreements with respect to Investment Property not in certificated form, (iv)
the execution of Deposit Account Control Agreements with respect to all Deposit
Accounts (other than the Cash Collateral Account) and (v) all appropriate
filings having been made with the United States Copyright Office or with the
United States Patent and Trademark Office. Such security interest shall be prior
to all other Liens on the Collateral except for Customary Permitted Liens having
priority over the Administrative Agent's Lien by operation of law or otherwise
as permitted under the Credit Agreement.
SECTION 3.3 JURISDICTION OF ORGANIZATION; CHIEF EXECUTIVE
OFFICE
On the date hereof such Grantor's jurisdiction of
organization, organizational identification number, if any, and the location of
such Grantor's chief executive office or sole place of business is specified on
Schedule 1 (Jurisdiction of Organization; Principal Executive Office).
SECTION 3.4 INVENTORY AND EQUIPMENT
On the date hereof, such Grantor's Inventory and Equipment
(other than mobile goods and Inventory or Equipment in transit) are kept at the
locations listed on Schedule 4 (Location of Inventory and Equipment).
SECTION 3.5 PLEDGED COLLATERAL
(a) The Pledged Interests pledged hereunder by such Grantor
are listed on Schedule 2 (Pledged Collateral) and constitute that percentage of
the issued and outstanding equity of all classes of each issuer thereof as set
forth on Schedule 2 (Pledged Collateral).
(b) All of the Pledged Interests have been duly and validly
issued and are fully paid and nonassessable.
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PLEDGE AND SECURITY AGREEMENT
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(c) Each of the Pledged Instruments constitutes the legal,
valid and binding obligation of the obligor with respect thereto, enforceable in
accordance with its terms, subject to the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally, and general equitable
principles (whether considered in a proceeding in equity or at law).
(d) All Pledged Collateral and, if applicable, any Additional
Pledged Collateral, consisting of certificated securities or Instruments has
been delivered to the Administrative Agent in accordance with Section 4.4(a)
(Pledged Collateral).
(e) All Pledged Collateral held by a Securities Intermediary
in a Securities Account is in a Control Account.
(f) Other than Pledged Interests that constitute General
Intangibles, there is no Pledged Collateral other than that represented by
certificated securities or Instruments in the possession of the Administrative
Agent or that consisting of Financial Assets held in a Control Account.
SECTION 3.6 ACCOUNTS
The aggregate amount payable to such Grantor under or in
connection with any Account evidenced by any Instrument or Chattel Paper that
has not been delivered to the Administrative Agent, properly endorsed for
transfer, to the extent delivery is required by Section 4.4 (Pledged Collateral)
does not exceed $100,000.
SECTION 3.7 INTELLECTUAL PROPERTY
(a) Schedule 5 (Intellectual Property) lists all Material
Intellectual Property of such Grantor on the date hereof, separately identifying
that owned by such Grantor and that licensed to such Grantor. Such Grantor owns
or has a right to use all Intellectual Property necessary to conduct its
business.
(b) On the date hereof, all Material Intellectual Property
owned by such Grantor is valid, subsisting and unexpired, has not been adjudged
invalid and has not been abandoned and the use thereof in the business of such
Grantor does not infringe the intellectual property rights of any other Person.
(c) Except as set forth in Schedule 5 (Intellectual Property),
on the date hereof, none of the Material Intellectual Property owned by such
Grantor is the subject of any exclusive licensing or franchise agreement
pursuant to which such Grantor is the licensor or franchisor.
(d) No holding, decision or judgment has been rendered by any
Governmental Authority that would limit, cancel or question the validity of, or
such Grantor's rights in, any Material Intellectual Property.
(e) No action or proceeding seeking to limit, cancel or
question the validity of any Material Intellectual Property owned by such
Grantor or such Grantor's ownership interest therein is on the date hereof
pending or, to the knowledge of such Grantor, threatened. There are no claims,
judgments or settlements to be paid by such Grantor relating to the Material
Intellectual Property.
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PLEDGE AND SECURITY AGREEMENT
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SECTION 3.8 DEPOSIT ACCOUNTS; CONTROL ACCOUNTS
The only Deposit Accounts or Securities Accounts maintained by
any Grantor on the date hereof are those listed on Schedule 6 (Bank Accounts;
Control Accounts), which sets forth such information separately for each
Grantor.
SECTION 3.9 COMMERCIAL TORT CLAIMS
The only Commercial Tort Claims of any Grantor existing on the
date hereof (regardless of whether the amount, defendant or other material facts
can be determined and regardless of whether such Commercial Tort Claim has been
asserted, threatened or has otherwise been made known to the obligee thereof or
whether litigation has been commenced for such claims) are those listed on
Schedule 7 (Commercial Tort Claims), which sets forth such information
separately for each Grantor.
SECTION 3.10 BUYERS, COMMISSION MERCHANTS AND SELLING AGENTS
As of the date hereof, no Grantor sells Farm Products to any
buyer, commission merchant or selling agent (as such terms are used in Section
1324 of the U.S. Food Security Act of 1985, as amended).
ARTICLE IV COVENANTS
Each Grantor agrees with the Administrative Agent to the
following, as long as any Obligation or Commitment remains outstanding and, in
each case, unless the Requisite Lenders otherwise consent in writing:
SECTION 4.1 GENERALLY
Such Grantor shall (a) except for the security interest
created by this Agreement, not create or suffer to exist any Lien upon or with
respect to any Collateral, except Liens permitted under Section 8.2 (Liens,
Etc.) of the Credit Agreement, (b) not use or permit any Collateral to be used
unlawfully or in violation of any provision of this Agreement, any other Loan
Document, any Related Document, any Requirement of Law or any policy of
insurance covering the Collateral, (c) not sell, transfer or assign (by
operation of law or otherwise) any Collateral except as permitted under the
Credit Agreement, (d) not enter into any agreement or undertaking restricting
the right or ability of such Grantor or the Administrative Agent to sell, assign
or transfer any Collateral if such restriction would have a Material Adverse
Effect and (e) promptly notify the Administrative Agent of its entry into any
agreement or assumption of undertaking that restricts the ability to sell,
assign or transfer any Collateral regardless of whether or not it has a Material
Adverse Effect.
SECTION 4.2 MAINTENANCE OF PERFECTED SECURITY INTEREST;
FURTHER DOCUMENTATION
(a) Such Grantor shall maintain the security interest created
by this Agreement as a perfected security interest having at least the priority
described in Section 3.2 (Perfection and Priority) and shall defend such
security interest against the claims and demands of all Persons.
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(b) Such Grantor shall furnish to the Administrative Agent
from time to time statements and schedules further identifying and describing
the Collateral and such other reports in connection with the Collateral as the
Administrative Agent may reasonably request, all in reasonable detail and in
form and substance reasonably satisfactory to the Administrative Agent.
(c) At any time and from time to time, upon the written
request of the Administrative Agent, and at the sole expense of such Grantor,
such Grantor shall promptly and duly execute and deliver, and have recorded,
such further instruments and documents and take such further action as the
Administrative Agent may reasonably request for the purpose of obtaining or
preserving the full benefits of this Agreement and of the rights and powers
herein granted, including the filing of any financing or continuation statement
under the UCC (or other similar laws) in effect in any jurisdiction with respect
to the security interest created hereby, filing effective financing statements
or giving notice under Clear Title, enforcing any right under the Packers and
Stockyards Act, and the execution and delivery of Deposit Account Control
Agreements and Control Account Agreements.
SECTION 4.3 CHANGES IN LOCATIONS, NAME, ETC.
(a) Except upon 15 days' prior written notice to the
Administrative Agent and delivery to the Administrative Agent of (i) all
documents reasonably requested by the Administrative Agent to maintain the
validity, perfection and priority of the security interests provided for herein
and (ii) if applicable, a written supplement to Schedule 4 (Location of
Inventory and Equipment) showing (x) any new locations where Inventory or
Equipment shall be kept and (y) any changes in the location at which Inventory
or Equipment shall be kept that would require the Administrative Agent to take
any action to maintain a perfected security interest in such Collateral, such
Grantor shall not do any of the following:
(i) permit any Inventory or Equipment to be kept at a location
other than those listed on Schedule 4 (Location of Inventory and
Equipment), except for Inventory or Equipment in transit;
(ii) change its jurisdiction of organization or the location
of its chief executive office or sole place of business, as applicable,
from that referred to in Section 3.3 (Jurisdiction of Organization;
Chief Executive Office); provided, however, that each Grantor that is a
registered organization may change its chief executive office or sole
place of business without prior written notice but shall nonetheless
provide the Administrative Agent prompt notice thereof; or
(iii) change its name, identity or corporate structure to such
an extent that any financing statement filed in connection with this
Agreement would become misleading.
(b) Such Grantor shall keep and maintain at its own cost and
expense satisfactory and complete records of the Collateral, including a record
of all payments received and all credits granted with respect to the Collateral
and all other dealings with the Collateral. If requested by the Administrative
Agent, the security interest of the Administrative Agent shall be noted on the
certificate of title of each Vehicle that is not subject to a purchase money
security interest.
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SECTION 4.4 PLEDGED COLLATERAL
(a) Such Grantor shall (i) deliver to the Administrative
Agent, all certificates and Instruments representing or evidencing any Pledged
Collateral (including Additional Pledged Collateral), and, at the Administrative
Agent's request, all Instruments, whether now existing or hereafter acquired, in
suitable form for transfer by delivery or, as applicable, accompanied by such
Grantor's endorsement, where necessary, or duly executed instruments of transfer
or assignment in blank, all in form and substance satisfactory to the
Administrative Agent, together, in respect of any Additional Pledged Collateral,
with a Pledge Amendment, duly executed by the Grantor, in substantially the form
of Annex 3 (Form of Pledge Amendment) or such other documentation acceptable to
the Administrative Agent and (ii) maintain all other Pledged Collateral
constituting Investment Property in a Control Account. Such Grantor authorizes
the Administrative Agent to attach each Pledge Amendment to this Agreement. The
Administrative Agent shall have the right, at any time in its discretion and
without notice to the Grantor, to transfer to or to register in its name or in
the name of its nominees any Pledged Collateral. The Administrative Agent shall
have the right at any time to exchange any certificate or instrument
representing or evidencing any Pledged Collateral for certificates or
instruments of smaller or larger denominations.
(b) Except as provided in Article V (Remedial Provisions),
such Grantor shall be entitled to receive all cash dividends paid in respect of
the Pledged Collateral (other than liquidating or distributing dividends) with
respect to the Pledged Collateral. Any sums paid upon or in respect of any
Pledged Collateral upon the liquidation or dissolution of any issuer of any
Pledged Collateral, any distribution of capital made on or in respect of any
Pledged Collateral or any property distributed upon or with respect to any
Pledged Collateral pursuant to the recapitalization or reclassification of the
capital of any issuer of Pledged Collateral or pursuant to the reorganization
thereof shall, unless otherwise subject to a perfected security interest in
favor of the Administrative Agent, be delivered to the Administrative Agent to
be held by it hereunder as additional collateral security for the Secured
Obligations. If any sum of money or property so paid or distributed in respect
of any Pledged Collateral shall be received by such Grantor, such Grantor shall,
until such money or property is paid or delivered to the Administrative Agent,
hold such money or property in trust for the Administrative Agent, segregated
from other funds of such Grantor, as additional security for the Secured
Obligations.
(c) Except as provided in Article V (Remedial Provisions),
such Grantor shall be entitled to exercise all voting, consent and corporate,
partnership or limited liability company rights with respect to the Pledged
Collateral; provided, however, that no vote shall be cast, consent given or
right exercised or other action taken by such Grantor that would impair the
Collateral, be inconsistent with or result in any violation of any provision of
the Credit Agreement, this Agreement or any other Loan Document or, without
prior notice to the Administrative Agent, enable or permit any issuer of Pledged
Collateral to issue any Stock or other equity Securities of any nature or to
issue any other securities convertible into or granting the right to purchase or
exchange for any Stock or other equity Securities of any nature of any issuer of
Pledged Collateral.
(d) Such Grantor shall not grant control (within the meaning
of Section 9-106 of the UCC) over any Investment Property to any Person other
than the Administrative Agent.
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(e) In the case of each Grantor that is an issuer of Pledged
Collateral, such Grantor agrees to be bound by the terms of this Agreement
relating to the Pledged Collateral issued by it and shall comply with such terms
insofar as such terms are applicable to it. In the case of any Grantor that is a
holder of any Stock or Stock Equivalent in any Person that is an issuer of
Pledged Collateral, such Grantor consents to (i) the exercise of the rights
granted to the Administrative Agent hereunder (including those described in
Section 5.3 (Pledged Collateral)), and (ii) the pledge by each other Grantor,
pursuant to the terms hereof, of the Pledged Interests in such Person and to the
transfer of such Pledged Interests to the Administrative Agent or its nominee
and to the substitution of the Administrative Agent or its nominee as a holder
of such Pledged Interests with all the rights, powers and duties of other
holders of Pledged Interests of the same class and, if the Grantor having
pledged such Pledged Interests hereunder had any right, power or duty at the
time of such pledge or at the time of such substitution beyond that of such
other holders, with all such additional rights, powers and duties. Such Grantor
agrees to execute and deliver to the Administrative Agent such certificates,
agreements and other documents as may be necessary to evidence, formalize or
otherwise give effect to the consents given in this clause (e).
(f) Such Grantor shall not, without the consent of the
Administrative Agent, agree to any amendment of any Constituent Document that in
any way adversely affects the perfection of the security interest of the
Administrative Agent in the Pledged Collateral pledged by such Grantor
hereunder, including any amendment electing to treat any membership interest or
partnership interest that is part of the Pledged Collateral as a security under
Section 8-103 of the UCC, or any election to certificate any previously
uncertificated membership interest or partnership interest that is part of the
Pledged Collateral.
SECTION 4.5 CONTROL ACCOUNTS
(a) Such Grantor shall not establish or maintain any
Securities Account that is not a Control Account.
(b) In the event (i) such Grantor or any Approved Securities
Intermediary shall, after the date hereof, terminate an agreement with respect
to the maintenance of a Control Account for any reason, (ii) the Administrative
Agent shall demand such termination as a result of the failure of an Approved
Securities Intermediary to comply with the terms of the applicable Control
Account Agreement, or (iii) the Administrative Agent determines in its sole
discretion that the financial condition of an Approved Securities Intermediary
has materially deteriorated, such Grantor agrees to notify all of its obligors
that were making payments to such terminated Control Account to make all future
payments to another Control Account.
SECTION 4.6 ACCOUNTS
(a) Such Grantor shall not, other than in the ordinary course
of business, (i) grant any extension of the time of payment of any Account, (ii)
compromise or settle any Account for less than the full amount thereof, (iii)
release, wholly or partially, any Person liable for the payment of any Account,
(iv) allow any credit or discount on any Account or (v) amend, supplement or
modify any Account in any manner that could adversely affect the value thereof.
(b) The Administrative Agent shall have the right to make test
verifications of the Accounts in any manner and through any medium that it
reasonably considers advisable, and such Grantor shall furnish all such
assistance and information as the Administrative Agent
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may reasonably require in connection therewith. At any time and from time to
time, upon the Administrative Agent's request and at the expense of the relevant
Grantor, such Grantor shall cause independent public accountants or others
satisfactory to the Administrative Agent to furnish to the Administrative Agent
reports showing reconciliations, aging and test verifications of, and trial
balances for, the Accounts; provided, however, that unless a Default or Event of
Default shall be continuing, the Administrative Agent shall request no more than
four such reports during any calendar year.
SECTION 4.7 DELIVERY OF INSTRUMENTS AND CHATTEL PAPER
If any amount in excess of $100,000 payable under or in
connection with any Collateral owned by such Grantor shall be or become
evidenced by an Instrument or Chattel Paper, such Grantor shall immediately
deliver such Instrument or Chattel Paper to the Administrative Agent, duly
indorsed in a manner satisfactory to the Administrative Agent, or, if consented
to by the Administrative Agent, shall xxxx all such Instruments and Chattel
Paper with the following legend: "This writing and the obligations evidenced or
secured hereby are subject to the security interest of Citicorp USA, Inc., as
Administrative Agent".
SECTION 4.8 INTELLECTUAL PROPERTY
(a) Such Grantor (either itself or through licensees) shall
(i) continue to use each Trademark that is Material Intellectual Property in
order to maintain such Trademark in full force and effect with respect to each
class of goods for which such Trademark is currently used, free from any claim
of abandonment for non-use, (ii) maintain as in the past the quality of products
and services offered under such Trademark, (iii) use such Trademark with the
appropriate notice of registration and all other notices and legends required by
applicable Requirements of Law, (iv) not adopt or use any xxxx that is
confusingly similar or a colorable imitation of such Trademark unless the
Administrative Agent shall obtain a perfected security interest in such xxxx
pursuant to this Agreement and (v) not (and not permit any licensee or
sublicensee thereof to) do any act or knowingly omit to do any act that
invalidates or materially impairs such Trademark or destroys or materially xxxxx
the goodwill associated with any Trademark.
(b) Such Grantor (either itself or through licensees) shall
not do any act, or omit to do any act, whereby any Patent that is Material
Intellectual Property may become forfeited, abandoned or dedicated to the
public.
(c) Such Grantor (either itself or through licensees) (i)
shall not (and shall not permit any licensee or sublicensee thereof to) do any
act or omit to do any act whereby any portion of the Copyrights that is Material
Intellectual Property may become invalidated or otherwise impaired and (ii)
shall not (either itself or through licensees) do any act whereby any portion of
the Copyrights that is Material Intellectual Property may fall into the public
domain.
(d) Such Grantor (either itself or through licensees) shall
not do any act, or omit to do any act, whereby any trade secret that is Material
Intellectual Property may become publicly available or otherwise unprotectable.
(e) Such Grantor (either itself or through licensees) shall
not do any act that knowingly uses any Material Intellectual Property to
infringe the intellectual property rights of any other Person.
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(f) Such Grantor shall notify the Administrative Agent
immediately if it knows, or has reason to know, that any application or
registration relating to any Material Intellectual Property may become
forfeited, abandoned or dedicated to the public, or of any adverse determination
or development (including the institution of, or any such determination or
development in, any proceeding in the United States Patent and Trademark Office,
the United States Copyright Office or any court or tribunal in any country)
regarding such Grantor's ownership of, right to use, interest in, or the
validity of, any Material Intellectual Property or such Grantor's right to
register the same or to own and maintain the same.
(g) Whenever such Grantor, either by itself or through any
agent, licensee or designee, shall file an application for the registration of
any Intellectual Property with the United States Patent and Trademark Office,
the United States Copyright Office or any similar office or agency within or
outside the United States or register any Internet domain name, such Grantor
shall report such filing to the Administrative Agent within five Business Days
after the last day of the fiscal quarter in which such filing occurs. Upon
request of the Administrative Agent, such Grantor shall execute and deliver, and
have recorded, all agreements, instruments, documents and papers as the
Administrative Agent may request to evidence the Administrative Agent's security
interest in any Copyright, Patent, Trademark or Internet domain name and the
goodwill and general intangibles of such Grantor relating thereto or represented
thereby.
(h) Such Grantor shall take all reasonable actions necessary
or requested by the Administrative Agent, including in any proceeding before the
United States Patent and Trademark Office, the United States Copyright Office or
any similar office or agency and any Internet domain name registrar, to maintain
and pursue each application (and to obtain the relevant registration) and to
maintain each registration of any Copyright, Trademark, Patent or Internet
domain name that is Material Intellectual Property, including filing of
applications for renewal, affidavits of use, affidavits of incontestability and
opposition and interference and cancellation proceedings.
(i) In the event that any Material Intellectual Property is
infringed upon or misappropriated or diluted by a third party, such Grantor
shall notify the Administrative Agent promptly after such Grantor learns
thereof. Such Grantor shall take appropriate and commercially reasonable action
in response to such infringement, misappropriation of dilution, including
promptly bringing suit for infringement, misappropriation or dilution and to
recover all damages for such infringement, misappropriation of dilution, and
shall take such other actions may be appropriate in its reasonable judgment
under the circumstances to protect such Material Intellectual Property.
(j) Unless otherwise agreed to by the Administrative Agent,
such Grantor shall execute and deliver to the Administrative Agent for filing in
(i) the United States Copyright Office a short-form copyright security agreement
in the form attached hereto as Annex 5 (Form of Short Form Copyright Security
Agreement), (ii) in the United States Patent and Trademark Office a short-form
patent security agreement in the form attached hereto as Annex 6 (Form of Short
Form Patent Security Agreement), (iii) the United States Patent and Trademark
Office and with the Secretary of State of any appropriate State of the United
States a short-form trademark security agreement in form attached hereto as
Annex 7 (Form of Short Form Trademark Security Agreement) and (iv) with the
appropriate Internet domain name registrar, a duly executed form of assignment
for such Internet domain name (together with appropriate supporting
documentation as may be requested by the Administrative Agent) in form and
substance reasonably acceptable to the Administrative Agent. In the case of
clause (iv) above, such Grantor hereby authorizes the Administrative Agent to
file such assignment in such Grantor's name and to otherwise do all other
actions necessary to complete such registration in the name of such Grantor.
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SECTION 4.9 VEHICLES
Upon the request of the Administrative Agent, within 30 days
after the date of such request and, with respect to any Vehicle that is acquired
by such Grantor subsequent to the date of any such request and that is not
subject to a purchase money security interest, within 30 days after the date of
acquisition thereof, such Grantor shall file all applications for certificates
of title or ownership indicating the Administrative Agent's first priority
security interest in the Vehicle covered by such certificate and any other
necessary documentation, in each office in each jurisdiction that the
Administrative Agent shall deem advisable to perfect its security interests in
the Vehicles.
SECTION 4.10 PAYMENT OF OBLIGATIONS
Such Grantor shall pay and discharge before they become
delinquent, all lawful governmental claims, taxes, assessments, charges or
levies imposed upon the Collateral or in respect of income or profits therefrom,
as well as all claims of any kind (including claims for labor, materials and
supplies) against or with respect to the Collateral, except that no such charge
need be paid if the amount or validity thereof is currently being contested in
good faith by proper proceedings, adequate reserves in conformity with GAAP with
respect thereto have been provided on the books of such Grantor and such
proceedings could not reasonably be expected to result in the sale, forfeiture
or loss of any material portion of the Collateral or any interest therein.
SECTION 4.11 NOTICE OF COMMERCIAL TORT CLAIMS
Such Grantor agrees that, from and after such time as it shall
acquire any interest in Commercial Tort Claims (whether from another Person or
because such Commercial Tort Claim shall have come into existence) in which the
aggregate amount claimed exceeds $100,000, (i) such Grantor shall, immediately
upon any such acquisition, deliver to the Administrative Agent, in each case in
form and substance satisfactory to the Administrative Agent, a notice of the
existence and nature of such Commercial Tort Claims and deliver a supplement to
Schedule 7 (Commercial Tort Claims) containing a specific description of such
Commercial Tort Claims, (ii) the provision of Section 2.1 (Collateral) shall
apply to such Commercial Tort Claims and (iii) such Grantor shall execute and
deliver to the Administrative Agent, in each case in form and substance
satisfactory to the Administrative Agent, any certificate, agreement and other
document, and take all other action, deemed by the Administrative Agent to be
reasonably necessary or appropriate for the Administrative Agent to obtain, on
behalf of the Lenders, a first-priority, perfected security interest in all such
Commercial Tort Claims. Any supplement to Schedule 7 (Commercial Tort Claims)
delivered pursuant to this Section 4.11 (Notice of Commercial Tort Claims)
shall, after the receipt thereof by the Administrative Agent, become part of
Schedule 7 (Commercial Tort Claims) for all purposes hereunder other than in
respect of representations and warranties made prior to the date of such
receipt.
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ARTICLE V REMEDIAL PROVISIONS
SECTION 5.1 CODE AND OTHER REMEDIES
During the continuance of an Event of Default, the
Administrative Agent may exercise, in addition to all other rights and remedies
granted to it in this Agreement and in any other instrument or agreement
securing, evidencing or relating to the Secured Obligations, all rights and
remedies of a secured party under the UCC or any other applicable law. Without
limiting the generality of the foregoing, the Administrative Agent, without
demand of performance or other demand, presentment, protest, advertisement or
notice of any kind (except any notice required by law referred to below) to or
upon any Grantor or any other Person (all and each of which demands, defenses,
advertisements and notices are hereby waived), may in such circumstances
forthwith collect, receive, appropriate and realize upon any Collateral, and may
forthwith sell, lease, assign, give option or options to purchase, or otherwise
dispose of and deliver any Collateral (or contract to do any of the foregoing),
in one or more parcels at public or private sale or sales, at any exchange,
broker's board or office of the Administrative Agent or any Lender or elsewhere
upon such terms and conditions as it may deem advisable and at such prices as it
may deem best, for cash or on credit or for future delivery without assumption
of any credit risk. The Administrative Agent shall have the right upon any such
public sale or sales, and, to the extent permitted by law, upon any such private
sale or sales, to purchase the whole or any part of the Collateral so sold, free
of any right or equity of redemption in any Grantor, which right or equity is
hereby waived and released. Each Grantor further agrees, at the Administrative
Agent's request, to assemble the Collateral and make it available to the
Administrative Agent at places that the Administrative Agent shall reasonably
select, whether at such Grantor's premises or elsewhere. The Administrative
Agent shall apply the net proceeds of any action taken by it pursuant to this
Section 5.1, after deducting all reasonable costs and expenses of every kind
incurred in connection therewith or incidental to the care or safekeeping of any
Collateral or in any way relating to the Collateral or the rights of the
Administrative Agent and any other Secured Party hereunder, including reasonable
attorneys' fees and disbursements, to the payment in whole or in part of the
Secured Obligations, in such order as the Credit Agreement shall prescribe, and
only after such application and after the payment by the Administrative Agent of
any other amount required by any provision of law, need the Administrative Agent
account for the surplus, if any, to any Grantor. To the extent permitted by
applicable law, each Grantor waives all claims, damages and demands it may
acquire against the Administrative Agent or any other Secured Party arising out
of the exercise by them of any rights hereunder. If any notice of a proposed
sale or other disposition of Collateral shall be required by law, such notice
shall be deemed reasonable and proper if given at least 10 days before such sale
or other disposition.
SECTION 5.2 ACCOUNTS AND PAYMENTS IN RESPECT OF GENERAL
INTANGIBLES
(a) If required by the Administrative Agent at any time during
the continuance of an Event of Default, any payment of Accounts or payment in
respect of General Intangibles, when collected by any Grantor, shall be
forthwith (and, in any event, within two Business Days) deposited by such
Grantor in the exact form received, duly indorsed by such Grantor to the
Administrative Agent if required, in an Approved Deposit Account or a Cash
Collateral Account, subject to withdrawal by the Administrative Agent as
provided in Section 5.4 (Proceeds to be Turned Over To Administrative Agent).
Until so turned over, such payment shall be held by such Grantor in trust for
the Administrative Agent, segregated from other funds of such Grantor. Each such
deposit of Proceeds of Accounts and payments in respect of General
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Intangibles shall be accompanied by a report identifying in reasonable detail
the nature and source of the payments included in the deposit.
(b) At the Administrative Agent's request, during the
continuance of an Event of Default, each Grantor shall deliver to the
Administrative Agent all original and other documents evidencing, and relating
to, the agreements and transactions that gave rise to the Accounts or payments
in respect of General Intangibles, including all original orders, invoices and
shipping receipts.
(c) The Administrative Agent may, without notice, at any time
during the continuance of an Event of Default, limit or terminate the authority
of a Grantor to collect its Accounts or amounts due under General Intangibles or
any thereof.
(d) The Administrative Agent in its own name or in the name of
others may at any time during the continuance of an Event of Default communicate
with Account Debtors to verify with them to the Administrative Agent's
satisfaction the existence, amount and terms of any Account or amounts due under
any General Intangible.
(e) Upon the request of the Administrative Agent at any time
during the continuance of an Event of Default, each Grantor shall notify Account
Debtors that the Accounts or General Intangibles have been collaterally assigned
to the Administrative Agent and that payments in respect thereof shall be made
directly to the Administrative Agent. In addition, the Administrative Agent may
at any time during the continuance of an Event of Default enforce such Grantor's
rights against such Account Debtors and obligors of General Intangibles.
(f) Notwithstanding anything herein to the contrary, each
Grantor shall remain liable under each of the Accounts and payments in respect
of General Intangibles to observe and perform all the conditions and obligations
to be observed and performed by it thereunder, all in accordance with the terms
of any agreement giving rise thereto. Neither the Administrative Agent nor any
other Secured Party shall have any obligation or liability under any agreement
giving rise to an Account or a payment in respect of a General Intangible by
reason of or arising out of this Agreement or the receipt by the Administrative
Agent nor any other Secured Party of any payment relating thereto, nor shall the
Administrative Agent nor any other Secured Party be obligated in any manner to
perform any obligation of any Grantor under or pursuant to any agreement giving
rise to an Account or a payment in respect of a General Intangible, to make any
payment, to make any inquiry as to the nature or the sufficiency of any payment
received by it or as to the sufficiency of any performance by any party
thereunder, to present or file any claim, to take any action to enforce any
performance or to collect the payment of any amounts that may have been assigned
to it or to which it may be entitled at any time or times.
SECTION 5.3 PLEDGED COLLATERAL
(a) During the continuance of an Event of Default, upon notice
by the Administrative Agent to the relevant Grantor or Grantors, (i) the
Administrative Agent shall have the right to receive any Proceeds of the Pledged
Collateral and make application thereof to the Obligations in the order set
forth in the Credit Agreement and (ii) the Administrative Agent or its nominee
may exercise (A) any voting, consent, corporate and other right pertaining to
the Pledged
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Collateral at any meeting of shareholders, partners or members, as the case may
be, of the relevant issuer or issuers of Pledged Collateral or otherwise and (B)
any right of conversion, exchange and subscription and any other right,
privilege or option pertaining to the Pledged Collateral as if it were the
absolute owner thereof (including the right to exchange at its discretion any of
the Pledged Collateral upon the merger, consolidation, reorganization,
recapitalization or other fundamental change in the corporate structure of any
issuer of Pledged Securities, the right to deposit and deliver any Pledged
Collateral with any committee, depositary, transfer agent, registrar or other
designated agency upon such terms and conditions as the Administrative Agent may
determine), all without liability except to account for property actually
received by it; provided, however, that the Administrative Agent shall have no
duty to any Grantor to exercise any such right, privilege or option and shall
not be responsible for any failure to do so or delay in so doing.
(b) In order to permit the Administrative Agent to exercise
the voting and other consensual rights that it may be entitled to exercise
pursuant hereto and to receive all dividends and other distributions that it may
be entitled to receive hereunder, (i) each Grantor shall promptly execute and
deliver (or cause to be executed and delivered) to the Administrative Agent all
such proxies, dividend payment orders and other instruments as the
Administrative Agent may from time to time reasonably request and (ii) without
limiting the effect of clause (i) above, such Grantor hereby grants to the
Administrative Agent an irrevocable proxy to vote all or any part of the Pledged
Collateral and to exercise all other rights, powers, privileges and remedies to
which a holder of the Pledged Collateral would be entitled (including giving or
withholding written consents of shareholders, partners or members, as the case
may be, calling special meetings of shareholders, partners or members, as the
case may be, and voting at such meetings), which proxy shall be effective,
automatically and without the necessity of any action (including any transfer of
any Pledged Collateral on the record books of the issuer thereof) by any other
person (including the issuer of such Pledged Collateral or any officer or agent
thereof) during the continuance of an Event of Default and which proxy shall
only terminate upon the payment in full of the Secured Obligations.
(c) Each Grantor hereby expressly authorizes and instructs
each issuer of any Pledged Collateral pledged hereunder by such Grantor to (i)
comply with any instruction received by it from the Administrative Agent in
writing that (A) states that an Event of Default has occurred and is continuing
and (B) is otherwise in accordance with the terms of this Agreement, without any
other or further instructions from such Grantor, and each Grantor agrees that
such issuer shall be fully protected in so complying and (ii) unless otherwise
expressly permitted hereby, pay any dividend or other payment with respect to
the Pledged Collateral directly to the Administrative Agent
SECTION 5.4 PROCEEDS TO BE TURNED OVER TO ADMINISTRATIVE AGENT
All Proceeds that are Cash Equivalents received by the
Administrative Agent hereunder shall be held by the Administrative Agent in a
Cash Collateral Account. All Proceeds while held by the Administrative Agent in
a Cash Collateral Account (or by such Grantor in trust for the Administrative
Agent) shall continue to be held as collateral security for the Secured
Obligations and shall not constitute payment thereof until applied as provided
in the Credit Agreement.
SECTION 5.5 REGISTRATION RIGHTS
(a) If the Administrative Agent shall determine to exercise
its right to sell any the Pledged Collateral pursuant to Section 5.1 (Code and
Other Remedies), and if in the opinion of the Administrative Agent it is
necessary or advisable to have the Pledged Collateral, or
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any portion thereof to be registered under the provisions of the Securities Act,
the relevant Grantor shall cause the issuer thereof to (i) execute and deliver,
and cause the directors and officers of such issuer to execute and deliver, all
such instruments and documents, and do or cause to be done all such other acts
as may be, in the opinion of the Administrative Agent, necessary or advisable to
register the Pledged Collateral, or that portion thereof to be sold, under the
provisions of the Securities Act, (ii) use its best efforts to cause the
registration statement relating thereto to become effective and to remain
effective for a period of one year from the date of the first public offering of
the Pledged Collateral, or that portion thereof to be sold and (iii) make all
amendments thereto or to the related prospectus that, in the opinion of the
Administrative Agent, are necessary or advisable, all in conformity with the
requirements of the Securities Act and the rules and regulations of the
Securities and Exchange Commission applicable thereto. Each Grantor agrees to
cause such issuer to comply with the provisions of the securities or "Blue Sky"
laws of any jurisdiction that the Administrative Agent shall designate and to
make available to its security holders, as soon as practicable, an earnings
statement (which need not be audited) satisfying the provisions of Section 11(a)
of the Securities Act.
(b) Each Grantor recognizes that the Administrative Agent may
be unable to effect a public sale of any Pledged Collateral by reason of certain
prohibitions contained in the Securities Act and applicable state securities
laws or otherwise or may determine that a public sale is impracticable or not
commercially reasonable and, accordingly, may resort to one or more private
sales thereof to a restricted group of purchasers that shall be obliged to
agree, among other things, to acquire such securities for their own account for
investment and not with a view to the distribution or resale thereof. Each
Grantor acknowledges and agrees that any such private sale may result in prices
and other terms less favorable than if such sale were a public sale and,
notwithstanding such circumstances, agrees that any such private sale shall be
deemed to have been made in a commercially reasonable manner. The Administrative
Agent shall be under no obligation to delay a sale of any Pledged Collateral for
the period of time necessary to permit the issuer thereof to register such
securities for public sale under the Securities Act, or under applicable state
securities laws, even if such issuer would agree to do so.
(c) Each Grantor agrees to use its best efforts to do or cause
to be done all such other acts as may be necessary to make such sale or sales of
all or any portion of the Pledged Collateral pursuant to this Section 5.5 valid
and binding and in compliance with all other applicable Requirements of Law.
Each Grantor further agrees that a breach of any covenant contained in this
Section 5.5 will cause irreparable injury to the Administrative Agent and other
Secured Parties, that the Administrative Agent and the other Secured Parties
have no adequate remedy at law in respect of such breach and, as a consequence,
that each and every covenant contained in this Section 5.5 shall be specifically
enforceable against such Grantor, and such Grantor hereby waives and agrees not
to assert any defense against an action for specific performance of such
covenants except for a defense that no Event of Default has occurred under the
Credit Agreement.
SECTION 5.6 DEFICIENCY
Each Grantor shall remain liable for any deficiency if the
proceeds of any sale or other disposition of the Collateral are insufficient to
pay the Secured Obligations and the reasonable fees and disbursements of any
attorney employed by the Administrative Agent or any other Secured Party to
collect such deficiency.
20
PLEDGE AND SECURITY AGREEMENT
SWIFT & COMPANY
ARTICLE VI THE ADMINISTRATIVE AGENT
SECTION 6.1 ADMINISTRATIVE AGENT'S APPOINTMENT AS
ATTORNEY-IN-FACT
(a) Each Grantor hereby irrevocably constitutes and appoints
the Administrative Agent and any officer or agent thereof, with full power of
substitution, as its true and lawful attorney-in-fact with full irrevocable
power and authority in the place and stead of such Grantor and in the name of
such Grantor or in its own name, for the purpose of carrying out the terms of
this Agreement, to take any appropriate action and to execute any document or
instrument that may be necessary or desirable to accomplish the purposes of this
Agreement, and, without limiting the generality of the foregoing, each Grantor
hereby gives the Administrative Agent the power and right, on behalf of such
Grantor, without notice to or assent by such Grantor, to do any of the
following:
(i) in the name of such Grantor or its own name, or otherwise,
take possession of and indorse and collect any check, draft, note,
acceptance or other instrument for the payment of moneys due under any
Account or General Intangible or with respect to any other Collateral
and file any claim or take any other action or proceeding in any court
of law or equity or otherwise deemed appropriate by the Administrative
Agent for the purpose of collecting any such moneys due under any
Account or General Intangible or with respect to any other Collateral
whenever payable;
(ii) in the case of any Intellectual Property, execute and
deliver, and have recorded, any agreement, instrument, document or
paper as the Administrative Agent may request to evidence the
Administrative Agent's security interest in such Intellectual Property
and the goodwill and General Intangibles of such Grantor relating
thereto or represented thereby;
(iii) pay or discharge taxes and Liens levied or placed on or
threatened against the Collateral, effect any repair or pay any
insurance called for by the terms of this Agreement (including all or
any part of the premiums therefor and the costs thereof);
(iv) execute, in connection with any sale provided for in
Section 5.1 (Code and Other Remedies) or 5.5 (Registration Rights), any
endorsement, assignment or other instrument of conveyance or transfer
with respect to the Collateral; or
(v) (A) direct any party liable for any payment under any
Collateral to make payment of any moneys due or to become due
thereunder directly to the Administrative Agent or as the
Administrative Agent shall direct, (B) ask or demand for, collect, and
receive payment of and receipt for, any moneys, claims and other
amounts due or to become due at any time in respect of or arising out
of any Collateral, (C) sign and indorse any invoice, freight or express
xxxx, xxxx of lading, storage or warehouse receipt, draft against
debtors, assignment, verification, notice and other document in
connection with any Collateral, (D) commence and prosecute any suit,
action or proceeding at law or in equity in any court of competent
jurisdiction to collect any Collateral and to enforce any other right
in respect of any Collateral, (E) defend any suit, action or proceeding
brought against such Grantor with respect to any Collateral, (F)
settle, compromise or adjust any such suit, action or proceeding and,
in connection therewith, give such discharges or releases as the
Administrative Agent may deem appropriate, (G) assign any Copyright,
Patent or Trademark (along with the goodwill of the business to which
any such
21
PLEDGE AND SECURITY AGREEMENT
SWIFT & COMPANY
Trademark pertains) throughout the world for such term or terms, on
such conditions, and in such manner as the Administrative Agent shall
in its sole discretion determine, including the execution and filing of
any document necessary to effectuate or record such assignment and (H)
generally, sell, transfer, pledge and make any agreement with respect
to or otherwise deal with any Collateral as fully and completely as
though the Administrative Agent were the absolute owner thereof for all
purposes, and do, at the Administrative Agent's option and such
Grantor's expense, at any time, or from time to time, all acts and
things that the Administrative Agent deems necessary to protect,
preserve or realize upon the Collateral and the Administrative Agent's
and the other Secured Parties' security interests therein and to effect
the intent of this Agreement, all as fully and effectively as such
Grantor might do.
Anything in this clause (a) to the contrary notwithstanding, the Administrative
Agent agrees that it shall not exercise any right under the power of attorney
provided for in this clause (a) unless an Event of Default shall be continuing.
(b) If any Grantor fails to perform or comply with any of its
agreements contained herein, the Administrative Agent, at its option, but
without any obligation so to do, may perform or comply, or otherwise cause
performance or compliance, with such agreement.
(c) The expenses of the Administrative Agent incurred in
connection with actions undertaken as provided in this Section 6.1, together
with interest thereon at a rate per annum equal to the rate per annum at which
interest would then be payable on past due Revolving Dollar Loans that are Base
Rate Loans under the Credit Agreement, from the date of payment by the
Administrative Agent to the date reimbursed by the relevant Grantor, shall be
payable by such Grantor to the Administrative Agent on demand.
(d) Each Grantor hereby ratifies all that said attorneys shall
lawfully do or cause to be done by virtue hereof. All powers, authorizations and
agencies contained in this Agreement are coupled with an interest and are
irrevocable until this Agreement is terminated and the security interests
created hereby are released.
SECTION 6.2 DUTY OF ADMINISTRATIVE AGENT
The Administrative Agent's sole duty with respect to the
custody, safekeeping and physical preservation of the Collateral in its
possession shall be to deal with it in the same manner as the Administrative
Agent deals with similar property for its own account. Neither the
Administrative Agent, any other Secured Party nor any of their respective
officers, directors, employees or agents shall be liable for failure to demand,
collect or realize upon any Collateral or for any delay in doing so or shall be
under any obligation to sell or otherwise dispose of any Collateral upon the
request of any Grantor or any other Person or to take any other action
whatsoever with regard to any Collateral. The powers conferred on the
Administrative Agent hereunder are solely to protect the Administrative Agent's
interest in the Collateral and shall not impose any duty upon the Administrative
Agent or any other Secured Party to exercise any such powers. The Administrative
Agent and the other Secured Parties shall be accountable only for amounts that
they actually receive as a result of the exercise of such powers, and neither
they nor any of their respective officers, directors, employees or agents shall
be responsible to any Grantor for any act or failure to act hereunder, except
for their own gross negligence or willful misconduct.
22
PLEDGE AND SECURITY AGREEMENT
SWIFT & COMPANY
SECTION 6.3 EXECUTION OF FINANCING STATEMENTS
Each Grantor authorizes the Administrative Agent, its counsel
or its representative, at any time and from time to time, to file or record
financing statements, amendments to financing statements, and other filing or
recording documents or instruments with respect to the Collateral without the
signature of such Grantor in such form and in such offices as the Administrative
Agent reasonably determines appropriate to perfect the security interests of the
Administrative Agent under this Agreement, and such financing statements and
amendments to financing statements may describe the Collateral covered by such
financing statements as "all assets of the Grantor", "all personal property of
the Grantor", or words of similar effect. Each Grantor also hereby authorizes
the Administrative Agent, its counsel or its representative, at any time and
from time to time, to file continuation statements with respect to previously
filed financing statements. A photographic or other reproduction of this
Agreement shall be sufficient as a financing statement or other filing or
recording document or instrument for filing or recording in any jurisdiction.
SECTION 6.4 AUTHORITY OF ADMINISTRATIVE AGENT
Each Grantor acknowledges that the rights and responsibilities
of the Administrative Agent under this Agreement with respect to any action
taken by the Administrative Agent or the exercise or non-exercise by the
Administrative Agent of any option, voting right, request, judgment or other
right or remedy provided for herein or resulting or arising out of this
Agreement shall, as between the Administrative Agent and the other Secured
Parties, be governed by the Credit Agreement and by such other agreements with
respect thereto as may exist from time to time among them, but, as between the
Administrative Agent and the Grantors, the Administrative Agent shall be
conclusively presumed to be acting as agent for the Administrative Agent and the
other Secured Parties with full and valid authority so to act or refrain from
acting, and no Grantor shall be under any obligation, or entitlement, to make
any inquiry respecting such authority.
ARTICLE VII MISCELLANEOUS
SECTION 7.1 AMENDMENTS IN WRITING
None of the terms or provisions of this Agreement may be
waived, amended, supplemented or otherwise modified except in accordance with
Section 11.1 (Amendments, Waivers, Etc.) of the Credit Agreement.
SECTION 7.2 NOTICES
All notices, requests and demands to or upon the
Administrative Agent or any Grantor hereunder shall be effected in the manner
provided for in Section 11.8 (Notices, Etc.) of the Credit Agreement; provided,
however, that any such notice, request or demand to or upon any Grantor shall be
addressed in case the Company at the Company's notice address set forth in such
Section 11.8.
SECTION 7.3 NO WAIVER BY COURSE OF CONDUCT; CUMULATIVE
REMEDIES
Neither the Administrative Agent nor any other Secured Party
shall by any act (except by a written instrument pursuant to Section 7.1
(Amendments in Writing)), delay,
23
PLEDGE AND SECURITY AGREEMENT
SWIFT & COMPANY
indulgence, omission or otherwise be deemed to have waived any right or remedy
hereunder or to have acquiesced in any Default or Event of Default. No failure
to exercise, nor any delay in exercising, on the part of the Administrative
Agent or any other Secured Party, any right, power or privilege hereunder shall
operate as a waiver thereof. No single or partial exercise of any right, power
or privilege hereunder shall preclude any other or further exercise thereof or
the exercise of any other right, power or privilege. A waiver by the
Administrative Agent or any other Secured Party of any right or remedy hereunder
on any one occasion shall not be construed as a bar to any right or remedy that
the Administrative Agent or such other Secured Party would otherwise have on any
future occasion. The rights and remedies herein provided are cumulative, may be
exercised singly or concurrently and are not exclusive of any other rights or
remedies provided by law.
SECTION 7.4 SUCCESSORS AND ASSIGNS
This Agreement shall be binding upon the successors and
assigns of each Grantor and shall inure to the benefit of the Administrative
Agent and each other Secured Party and their successors and assigns; provided,
however, that no Grantor may assign, transfer or delegate any of its rights or
obligations under this Agreement without the prior written consent of the
Administrative Agent.
SECTION 7.5 COUNTERPARTS
This Agreement may be executed by one or more of the parties
to this Agreement on any number of separate counterparts (including by
telecopy), each of which when so executed shall be deemed to be an original and
all of which taken together shall constitute one and the same agreement.
Signature pages may be detached from multiple counterparts and attached to a
single counterpart so that all signature pages are attached to the same
document. Delivery of an executed counterpart by telecopy shall be effective as
delivery of a manually executed counterpart.
SECTION 7.6 SEVERABILITY
Any provision of this Agreement that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
SECTION 7.7 SECTION HEADINGS
The Article and Section titles contained in this Agreement
are, and shall be, without substantive meaning or content of any kind whatsoever
and are not part of the agreement of the parties hereto.
SECTION 7.8 ENTIRE AGREEMENT
This Agreement together with the other Loan Documents
represents the entire agreement of the parties and supersedes all prior
agreements and understandings relating to the subject matter hereof.
24
PLEDGE AND SECURITY AGREEMENT
SWIFT & COMPANY
SECTION 7.9 GOVERNING LAW
This Agreement 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 7.10 ADDITIONAL GRANTORS
If, pursuant to Section 7.11 (Additional Collateral and
Guaranties) of the Credit Agreement, Holdings or the Company shall be required
to cause any Subsidiary of Holdings or the Company that is not a Grantor to
become a Grantor hereunder, such Subsidiary shall execute and deliver to the
Administrative Agent a Joinder Agreement in the form of Annex 4 (Form of Joinder
Agreement) and shall thereafter for all purposes be a party hereto and have the
same rights, benefits and obligations as a Grantor party hereto on the Closing
Date.
SECTION 7.11 RELEASE OF COLLATERAL
(a) At the time provided in Section 10.7(b)(i) (Concerning the
Collateral and the Collateral Documents) of the Credit Agreement, the Collateral
shall be released from the Lien created hereby and this Agreement and all
obligations (other than those expressly stated to survive such termination) of
the Administrative Agent and each Grantor hereunder shall terminate, all without
delivery of any instrument or performance of any act by any party, and all
rights to the Collateral shall revert to the Grantors. At the request and sole
expense of any Grantor following any such termination, the Administrative Agent
shall deliver to such Grantor any Collateral of such Grantor held by the
Administrative Agent hereunder and execute and deliver to such Grantor such
documents as such Grantor shall reasonably request to evidence such termination.
(b) If the Administrative Agent shall be permitted pursuant to
Section 10.7(b)(ii) or (iii) (Concerning the Collateral and the Collateral
Documents) of the Credit Agreement to release any Lien created hereby upon any
Collateral (including any Collateral sold or disposed of by any Grantor in a
transaction permitted by the Credit Agreement), such Collateral shall be
released from the Lien created hereby to the extent provided under, and subject
to the terms and conditions set forth in, Section 10.7(b)(ii) or (iii)
(Concerning the Collateral and the Collateral Documents) of the Credit
Agreement. In connection therewith, the Administrative Agent, at the request and
sole expense of the Company, shall execute and deliver to the Company all
releases or other documents reasonably necessary or desirable for the release of
the Lien created hereby on such Collateral. At the request and sole expense of
the Company, a Grantor shall be released from its obligations hereunder in the
event that all the capital stock of such Grantor shall be so sold or disposed;
provided, however, that the Company shall have delivered to the Administrative
Agent, at least ten Business Days prior to the date of the proposed release, a
written request for release identifying the relevant Grantor and the terms of
the sale or other disposition in reasonable detail, including the price thereof
and any expenses in connection therewith, together with a certification by the
Company in form and substance satisfactory to the Administrative Agent stating
that such transaction is in compliance with the Credit Agreement and the other
Loan Documents.
25
PLEDGE AND SECURITY AGREEMENT
SWIFT & COMPANY
SECTION 7.12 REINSTATEMENT
Each Grantor further agrees that, if any payment made by any
Loan Party or other Person and applied to the Obligations 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 the proceeds
of Collateral are required to be returned by any Secured Party to such Loan
Party, its estate, trustee, receiver or any other party, including any Grantor,
under any bankruptcy law, state or federal law, common law or equitable cause,
then, to the extent of such payment or repayment, 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 or, if prior thereto the Lien granted
hereby or other Collateral securing such liability hereunder shall have been
released or terminated by virtue of such cancellation or surrender), 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 any Lien or other Collateral securing the obligations of any
Grantor in respect of the amount of such payment.
[SIGNATURE PAGES FOLLOW]
26
PLEDGE AND SECURITY AGREEMENT
SWIFT & COMPANY
IN WITNESS WHEREOF, each of the undersigned has caused this Pledge and
Security Agreement to be duly executed and delivered as of the date first above
written.
Grantors:
S&C HOLOCO 3, INC.,
By: /s/ XXXXX XXXXXX
---------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President and CFO
SWIFT & COMPANY,
By: /s/ XXXXX XXXXXX
---------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President and CFO
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 PLEDGE AND SECURITY AGREEMENT FOR SWIFT & COMPANY'S
CREDIT AGREEMENT]
ANNEX 1
TO
PLEDGE AND SECURITY AGREEMENT
FORM OF DEPOSIT ACCOUNT CONTROL AGREEMENT
------------- --, ----
[Financial Institution]
[Address]
Ladies and Gentlemen:
Reference is made to account no. [__________] maintained with
you (the "Bank") by [ ] (the "Company") into which funds are deposited
from time to time (the "Account"). [The Company] [Swift & Company, an affiliate
of the Company,] has entered into a Credit Agreement, dated as of September 19,
2002 (as the same may be amended, restated, supplemented or otherwise modified
from time to time, the "Credit Agreement"), among [Swift & Company,] [the
Company,] S&C Australia Holdco Pty. Ltd., Australia Meat Holdings Pty. Ltd.,
S&C Holdco 3, Inc., the Lenders and Issuers party thereto, Citicorp USA, Inc.,
as administrative and collateral agent for the Lenders and Issuers (in such
capacity the "Administrative Agent") and as Australian agent for the Lender and
Issuers, JPMorgan Chase Bank, as syndication agent for the Lenders and the
Issuers, Citisecurities Limited, 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.
Pursuant to the Credit Agreement and related documents, the
Company has granted to the Administrative Agent, for the benefit of the Secured
Parties, a security interest in certain property of the Company, including,
among other things, accounts, inventory, equipment, instruments, investment
property, general intangibles and all proceeds thereof (the "Collateral").
Payments with respect to the Collateral are or hereafter may be made to the
Account. You, the Company and the Administrative Agent are entering into this
letter agreement to perfect the security interest of the Administrative Agent in
the Account.
The Company hereby transfers to the Administrative Agent
exclusive control of the Account and all funds and other property on deposit
therein. By your execution of this letter agreement, you (i) agree that you
shall comply with instructions originated by the Administrative Agent directing
disposition of the funds and other property on deposit in the Account without
further consent of the Company and (ii) acknowledge that the Administrative
Agent now has exclusive control of the Account, that all funds in the Account
shall be transferred to the Administrative Agent as provided herein, that the
Account is being maintained by you for the benefit of the Administrative Agent
and that all amounts and other property therein are held by you as custodian for
the Administrative Agent.
Except as provided in clause (d) below, the Account shall not
be subject to deduction, set-off, banker's lien, counterclaim, defense,
recoupment or any other right in favor of any person or entity other than the
Administrative Agent. By your execution of this letter agreement you also
acknowledge that, as of the date hereof, you have received no notice of any
other pledge or assignment of the Account and have not executed any agreements
with third
A1-1
parties covering the disposition of funds in the Account. You agree with the
Administrative Agent as follows:
(a) Notwithstanding anything to the contrary or any other
agreement relating to the Account, the Account is and shall be
maintained for the benefit of the Administrative Agent[, shall be
entitled "Citicorp USA, Inc. [name of Company] Account"](1) and shall
be subject to written instructions only from an authorized officer of
the Administrative Agent.
(b) You shall maintain a record of all checks and other
remittance items received in the Account and, in addition to providing
the Company with photostatic copies thereof, vouchers, enclosures and
the like of such checks and remittance items on a daily basis, furnish
to the Administrative Agent a monthly statement of the Account to
Citicorp USA, Inc., as Administrative Agent at the following address:
000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, Attention:
[____________], with a copy to the Company.
(c) You shall transfer (by wire transfer or other method of
transfer mutually acceptable to you and the Administrative Agent) to
the Agent, in same day funds, on each business day, the entire balance
in the Account to the following account:
ABA Number:
----------------------------------
Citibank, N.A.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Account Name:
--------------------------------
Concentration Account
Account Number:
-------------------------------
Reference:
------------------------------------
Attn:
----------------------------------------
or to such other account as the Administrative Agent may from time to
time designate in writing (the "Administrative Agent Concentration
Account").
(d) All customary service charges and fees with respect to the
Account shall be debited to the Account. In the event insufficient
funds remain in the Account to cover such customary service charges and
fees, the Company shall pay and indemnify you for the amounts of such
customary service charges and fees.
This letter agreement shall be binding upon and shall inure to
the benefit of you, the Company, the Administrative Agent, the Secured Parties
referred to in the Credit Agreement and the respective successors, transferees
and assigns of any of the foregoing. This letter agreement may not be modified
except upon the mutual consent of the Administrative Agent, the Company and you.
You may terminate this letter agreement only upon 30 days' prior written notice
to the Company and the Administrative Agent. The Administrative Agent may
terminate this letter agreement upon 10 days' prior written notice to you and
the Company. Upon such termination you shall close the Account and transfer all
funds in the Account to the Administrative Agent Concentration Account or as
otherwise directed by the Administrative
----------
(1) Only required for new accounts.
A1-2
Agent. After any such termination, you shall nonetheless remain obligated to
transfer promptly to the Administrative Agent Concentration Account or as the
Administrative Agent may otherwise direct all funds and other property received
in respect of the Account.
This letter agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which when
taken together shall constitute one and the same agreement. Delivery of an
executed counterpart of a signature page to this letter agreement by telecopier
shall be effective as delivery of a manually executed counterpart of this letter
agreement.
This letter agreement supersedes all prior agreements, oral or
written, with respect to the subject matter hereof and may not be amended,
modified or supplemented except by a writing signed by the Administrative Agent,
the Company and you. You have not and will not agree with any third party to
comply with instructions or other directions concerning the Account or the
disposition of funds in the Account originated by such third party without the
prior written consent of the Administrative Agent and the Company.
The Company hereby agrees to indemnify and hold you harmless,
your directors, officers, agents and employees against any and all claims,
causes of action, liabilities, lawsuits, demands, and damages, including,
without limitation, any and all court costs and reasonable attorneys fees, in
any way related to or arising out of or in connection with this letter agreement
or any action taken or not taken pursuant hereto, except to the extent caused by
your gross negligence or willful misconduct.
This letter agreement shall be governed by, and construed in
accordance with, the law of the State of
New York.
A1-3
Upon acceptance of this letter agreement it shall be the valid
and binding obligation of the Company, the Administrative Agent, and you, in
accordance with its terms.
Very truly yours,
[NAME OF COMPANY]
By:
---------------------------------------
Name:
Title:
CITICORP USA, INC.,
as Administrative Agent
By:
---------------------------------------
Name:
Title:
ACKNOWLEDGED AND AGREED as of the date first above written:
[FINANCIAL INSTITUTION]
By:
-------------------------------
Name:
Title:
[SIGNATURE PAGE TO PLEDGE AND SECURITY AGREEMENT]
ANNEX 2
TO
PLEDGE AND SECURITY AGREEMENT
FORM OF CONTROL ACCOUNT AGREEMENT
[Name and Address
of Approved Securities
Intermediary]
_____________ __, 20__
Ladies and Gentlemen:
The undersigned ___________________ (the "Pledgor") together
with certain of its affiliates are party to a Pledge and Security Agreement
dated September 19, 2002 in favor of Citicorp USA, Inc., as administrative agent
for the Secured Parties referred to therein (the "Pledgee" and such agreement
the "Pledge and Security Agreement") pursuant to which a security interest is
granted by the Pledgor in all present and future Assets (hereinafter defined) in
Account No. _______ of the Pledgor (the "Pledge").
In connection therewith, the Pledgor hereby instructs you (the
"Approved Securities Intermediary") to do all of the following:
1. maintain the Account, as "________ - Citicorp USA Control
Account";
2. hold in the Account the assets, including, without limitation,
all financial assets, securities, security entitlements and
all other property and rights now or hereafter received in
such Account (collectively the "Assets"), including, without
limitation, those assets listed on Schedule A (List of Assets)
attached hereto and made a part hereof;
3. provide to the Pledgee, with a duplicate copy to the Pledgor,
a monthly statement of Assets and a confirmation statement of
each transaction effected in the Account after such
transaction is effected; and
4. honor only the instructions or entitlement orders in regard to
or in connection with the Account given by an Authorized
Officer of the Pledgee, except that until such time as the
Pledgee gives a written notice to the Approved Securities
Intermediary that the Pledgor's rights under this sentence
have been terminated (on which notice the Approved Securities
Intermediary may rely exclusively), the Pledgor acting through
an Authorized Officer may (a) exercise any voting right that
it may have with respect to any Asset, (b) give instructions
to enter into purchase or sale transactions in the Account and
(c) withdraw and receive for its own use all regularly
scheduled interest paid with respect to the Assets ("Permitted
Withdrawals"); provided, however, that, unless the Pledgee has
consented to the specific transaction, the Pledgor shall not
instruct the Approved Securities Intermediary to deliver and,
except as may be required by law or by court order, the
Approved Securities Intermediary shall not deliver, cash,
A2-1
securities, or proceeds from the sale of, or distributions on,
such securities out of the Account to the Pledgor or to any
other person or entity other than Permitted Withdrawals.
By its signature below, the Approved Securities Intermediary
agrees to comply with the entitlement orders and instructions of an Authorized
Officer of the Pledgee (including, without limitation, any instruction with
respect to sales, trades, transfers and withdrawals of cash or other of the
Assets) without the consent of the Pledgor or any other person (it being
understood and agreed by the Pledgor that the Approved Securities Intermediary
shall have no duty or obligation whatsoever of any kind or character to have
knowledge of the terms of the Pledge and Security Agreement or to determine
whether or not an event of default exists thereunder).
The Authorized Officer of the Pledgee who shall give oral
instructions hereunder shall confirm the same in writing to the Approved
Securities Intermediary within five days after such oral instructions are given.
For the purpose of this Agreement, the term "Authorized
Officer of the Pledgor" shall refer in the singular to ___________________ or
___________________ (each of whom is, on the date hereof, an officer or director
of the Pledgor) and "Authorized Officer of the Pledgee" shall refer in the
singular to any person who is a vice president or managing director of the
Pledgee. In the event that the Pledgor shall find it advisable to designate a
replacement for any of its Authorized Officers, written notice of any such
replacement shall be given to the Approved Securities Intermediary and the
Pledgee.
Except with respect to the obligations and duties as set forth
herein, this Agreement shall not impose or create any obligation or duty upon
the Approved Securities Intermediary greater than or in addition to the
customary and usual obligations and duties of the Approved Securities
Intermediary to the Pledgor.
As long as the Assets are pledged to the Pledgee, (i) the
Approved Securities Intermediary shall not invade the Assets to cover margin
debits or calls in any other account of the Pledgor and (ii) the Approved
Securities Intermediary agrees that, except for liens resulting from customary
commissions, fees, or charges based upon transactions in the Account, it
subordinates in favor of the Pledgee any security interest, lien or right of
setoff the Approved Securities Intermediary may have. The Approved Securities
Intermediary acknowledges that it has not received notice of any other security
interest in the Account or the Assets. In the event any such notice is received,
the Approved Securities Intermediary shall promptly notify the Pledgee. The
Pledgor herein represents that the Assets are free and clear of any lien or
encumbrance and agrees that, with the exception of the security interest granted
to the Pledgee, no lien or encumbrance shall be placed by it on the Assets
without the express written consent of both the Pledgee and the Approved
Securities Intermediary.
This Agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and assigns and it and the
rights and obligations of the parties hereto shall be governed by, and construed
and interpreted in accordance with, and the law of the Approved Securities
Intermediary's jurisdiction for the purposes of Section 8-110 of the Uniform
Commercial Code in effect in the State of
New York (the "UCC") shall be, the law
of the State of
New York.
A2-2
The Approved Securities Intermediary shall treat all property
at any time held by the Approved Securities Intermediary in the Account as
financial assets within the meaning of the UCC. The Approved Securities
Intermediary acknowledges that this Agreement constitutes written notification
to the Approved Securities Intermediary, pursuant to the UCC and any applicable
federal regulations for the Federal Reserve Book Entry System, of the Pledgee's
security interest in the Assets. The Pledgor, Pledgee and Approved Securities
Intermediary are entering into this Agreement to provide for the Pledgee's
control of the Assets and to confirm the first priority of the Pledgee's
security interest in the Assets. The Approved Securities Intermediary agrees to
promptly make and thereafter maintain all necessary entries or notations in its
books and records to reflect the Pledgee's security interest in the Assets.
If any term or provision of this Agreement is determined to be
invalid or unenforceable, the remainder of this Agreement shall be construed in
all respects as if the invalid or unenforceable term or provision were omitted.
This Agreement may not be altered or amended in any manner without the express
written consent of the Pledgor, the Pledgee and the Approved Securities
Intermediary. This Agreement may be executed in any number of counterparts, all
of which shall constitute one original agreement.
This Agreement may be terminated by the Approved Securities
Intermediary upon 30 day's prior written notice to the Pledgor and the Pledgee.
Upon expiration of such 30-day period, the Approved Securities Intermediary
shall be under no further obligation except to hold the Assets in accordance
with the terms of this Agreement, pending receipt of written instructions from
the Pledgor and the Pledgee, jointly, regarding the further disposition of the
pledged Assets.
The Pledgor acknowledges that this Agreement supplements any
existing agreement of the Pledgor with the Approved Securities Intermediary and,
except as expressly provided herein, is in no way intended to abridge any right
that the Approved Securities Intermediary might otherwise have.
The Pledgor hereby agrees to indemnify and hold you harmless,
your affiliates, directors, officers, agents and employees against any and all
claims, causes of action, liabilities, lawsuits, demands, and damages,
including, without limitation, any and all court costs and reasonable attorneys
fees, in any way related to or arising out of or in connection with this letter
agreement or any action taken or not taken pursuant hereto, except to the extent
caused by your gross negligence or willful misconduct.
A2-3
IN WITNESS WHEREOF, the Pledgor and the Pledgee have caused
this Agreement to be executed by their duly authorized officers all as of the
date first above written.
[NAME OF PLEDGOR]
By:
------------------------------
Name:
Title:
CITICORP USA, INC.,
as Administrative Agent
By:
------------------------------
Name:
Title:
ACCEPTED AND AGREED
as of the date first above written:
[APPROVED FINANCIAL INTERMEDIARY]
By:
----------------------------------
Name:
Title:
[SIGNATURE PAGE TO CONTROL ACCOUNT AGREEMENT]
SCHEDULE A
TO
CONTROL AGREEMENT
LIST OF ASSETS FOR PLEDGED COLLATERAL ACCOUNT NUMBER: _______________
A2-5
ANNEX 3
TO
PLEDGE AND SECURITY AGREEMENT
FORM OF PLEDGE AMENDMENT
This PLEDGE AMENDMENT, dated as of September 19, 2002, is
delivered pursuant to Section 4.4(a) (Pledged Collateral) of the Pledge and
Security Agreement, dated as of September 19, 2002, by SWIFT & COMPANY (the
"Company"), the [undersigned Grantor and the other] Subsidiaries of the Company
from time to time party thereto as Grantors in favor of Citicorp USA, Inc., as
the agent for the Secured Parties referred to therein (the "Pledge and Security
Agreement") and the undersigned hereby agrees that this Pledge Amendment may be
attached to the Pledge and Security Agreement and that the Pledged Collateral
listed on this Pledge Amendment shall be and become part of the Collateral
referred to in the Pledge and Security Agreement and shall secure all Secured
Obligations of the undersigned. Capitalized terms used herein but not defined
herein are used herein with the meaning given them in the Pledge and Security
Agreement.
[GRANTOR]
By:
-----------------------------------
Name:
Title:
Pledged Stock
NUMBER OF
SHARES,
UNITS OR
ISSUER CLASS CERTIFICATE NO(S). PAR VALUE INTERESTS
------ ----- ------------------ --------- ---------
Pledged Debt
PRINCIPAL
ISSUER DESCRIPTION OF DEBT CERTIFICATE NO(S). FINAL MATURITY AMOUNT
------ ------------------- ------------------ -------------- ------
A3-1
ACKNOWLEDGED AND AGREED as of the date first above written:
CITICORP USA, INC.,
as Administrative Agent
By:
---------------------------------
Name:
Title:
A3-2
ANNEX 4
TO
PLEDGE AND SECURITY AGREEMENT
FORM OF JOINDER AGREEMENT
This JOINDER AGREEMENT, dated as of September 19, 2002, is
delivered pursuant to Section 7.10 (Additional Grantors) of the Pledge and
Security Agreement, dated as of September 19, 2002, by SWIFT & COMPANY (the
"Company") and the Subsidiaries of the Company listed on the signature pages
thereof or joined thereto in favor of the Citicorp USA, Inc., as administrative
agent for the Secured Parties referred to therein (the "Pledge and Security
Agreement"). Capitalized terms used herein but not defined herein are used with
the meanings given them in the Pledge and Security Agreement.
By executing and delivering this Joinder Agreement, the
undersigned, as provided in Section 7.10 (Additional Grantors) of the Pledge and
Security Agreement, hereby becomes a party to the Pledge and Security Agreement
as a Grantor thereunder with the same force and effect as if originally named as
a Grantor therein and, without limiting the generality of the foregoing, hereby
grants to the Administrative Agent, as collateral security for the full, prompt
and complete payment and performance when due (whether at stated maturity, by
acceleration or otherwise) of the Secured Obligations of the undersigned, hereby
collaterally assigns, mortgages, pledges and hypothecates to the Administrative
Agent and grants to the Administrative Agent a Lien on and security interest in,
all of its right, title and interest in, to and under the Collateral of the
undersigned and expressly assumes all obligations and liabilities of a Grantor
thereunder.
The information set forth in Annex 1-A is hereby added to the
information set forth in Schedules 1 through 6 to the Pledge and Security
Agreement.
The undersigned hereby represents and warrants that each of
the representations and warranties contained in Article III (Representations and
Warranties) of the Pledge and Security Agreement applicable to it is true and
correct on and as the date hereof as if made on and as of such date.
IN WITNESS WHEREOF, the undersigned has caused this Joinder
Agreement to be duly executed and delivered as of the date first above written.
[ADDITIONAL GRANTOR]
By:
----------------------------------
Name:
Title:
A4-1
ACKNOWLEDGED AND AGREED
as of the date first above written:
CITICORP USA, INC.,
as Administrative Agent
By:
-----------------------------------
Name:
Title:
A4-2
ANNEX 5
TO
PLEDGE AND SECURITY AGREEMENT
FORM OF SHORT FORM COPYRIGHT SECURITY AGREEMENT
COPYRIGHT SECURITY AGREEMENT, dated as of September 19, 2002,
by each of the entities listed on the signature pages hereof or that becomes a
party hereto pursuant to Section 7.10 (Additional Grantors) of the Security
Agreement referred to below (each a "Grantor" and, collectively, the
"Grantors"), in favor of Citicorp USA, Inc. ("Citicorp"), as administrative and
collateral agent for the Secured Parties (as defined in the Credit Agreement
referred to below) (in such capacity, the "Administrative Agent").
WITNESSETH:
WHEREAS, pursuant to the Credit Agreement, dated as of
September 19, 2002 (as the same may be amended, restated, supplemented or
otherwise modified from time to time, the "Credit Agreement"), among Swift &
Company (the "Company"), S&C Australia Holdco Pty. Ltd. ("Australian Holdings"),
Australia Meat Holdings Pty. Ltd. (the "Australian Company," together with
Australian Holdings, the "Australian Borrowers," and collectively with the
Company, the "Borrowers"), S&C Holdco 3, Inc., the Lenders and Issuers party
thereto, Citicorp USA, Inc., as Administrative 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 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 the
Issuers have severally agreed to make extensions of credit to the Borrowers upon
the terms and subject to the conditions set forth therein;
WHEREAS, the Grantors are party to the Domestic Guaranty
pursuant to which they have guaranteed the Obligations; and
WHEREAS, all the Grantors are party to a Pledge and Security
Agreement of even date herewith in favor of the Administrative Agent (the
"Security Agreement") pursuant to which the Grantors are required to execute and
deliver this Copyright Security Agreement;
NOW, THEREFORE, in consideration of the premises and to induce
the Lenders, the Issuers and the Administrative Agent to enter into the Credit
Agreement and to induce the Lenders and the Issuers to make their respective
extensions of credit to the Borrowers thereunder, each Grantor hereby agrees
with the Administrative Agent as follows:
SECTION 1. DEFINED TERMS
Unless otherwise defined herein, terms defined in the Credit
Agreement or in the Security Agreement and used herein have the meaning given to
them in the Credit Agreement or the Security Agreement.
SECTION 2. GRANT OF SECURITY INTEREST IN COPYRIGHT COLLATERAL
Each Grantor, as collateral security for the full, prompt and
complete payment and performance when due (whether at stated maturity, by
acceleration or otherwise) of the
A5-1
Secured Obligations of such Grantor, hereby collaterally assigns, mortgages,
pledges and hypothecates to the Administrative Agent for the benefit of the
Secured Parties, and grants to the Administrative Agent for the benefit of the
Secured Parties a lien on and security interest in, all of its right, title and
interest in, to and under the following Collateral of such Grantor (the
"Copyright Collateral"):
(a) all of its Copyrights and Copyright Licenses to which it
is a party, including, without limitation, those referred to on Schedule I
hereto;
(b) all reissues, continuations or extensions of the
foregoing; and
(c) all Proceeds of the foregoing, including, without
limitation, any claim by Grantor against third parties for past, present, future
infringement or dilution of any Copyright or Copyright licensed under any
Copyright License.
SECTION 3. SECURITY AGREEMENT
The security interest granted pursuant to this Copyright
Security Agreement is granted in conjunction with the security interest granted
to the Administrative Agent pursuant to the Security Agreement and each Grantor
hereby acknowledges and affirms that the rights and remedies of the
Administrative Agent with respect to the security interest in the Copyright
Collateral made and granted hereby are more fully set forth in the Security
Agreement, the terms and provisions of which are incorporated by reference
herein as if fully set forth herein.
[SIGNATURE PAGES FOLLOW]
A5-2
IN WITNESS WHEREOF, each Grantor has caused this Copyright
Security Agreement to be executed and delivered by its duly authorized offer as
of the date first set forth above.
Very truly yours,
[GRANTOR],
as Grantor
By:
--------------------------------------
Name:
Title:
ACCEPTED AND AGREED
as of the date first above written:
CITICORP USA, INC.,
as Administrative Agent
By:
-----------------------------------------
Name:
Title:
[SIGNATURE PAGE TO COPYRIGHT SECURITY AGREEMENT]
ACKNOWLEDGEMENT OF GRANTOR
STATE OF ________________)
) ss.
COUNTY OF _______________)
On this ___ day of ________ __, 20__ before me personally
appeared ______________________, proved to me on the basis of satisfactory
evidence to be the person who executed the foregoing instrument on behalf of
________________, who being by me duly sworn did depose and say that he is an
authorized officer of said corporation, that the said instrument was signed on
behalf of said corporation as authorized by its Board of Directors and that he
acknowledged said instrument to be the free act and deed of said corporation.
----------------------------
Notary Public
[ACKNOWLEDGMENT OF GRANTOR FOR COPYRIGHT SECURITY AGREEMENT]
SCHEDULE I
TO
COPYRIGHT SECURITY AGREEMENT
COPYRIGHT REGISTRATIONS
A. REGISTERED COPYRIGHTS
[Include Copyright Registration Number and Date]
B. COPYRIGHT APPLICATIONS
C. COPYRIGHT LICENSES
[Include complete legal description of agreement (name of agreement,
parties and date)]
A5-5
ANNEX 6
TO
PLEDGE AND SECURITY AGREEMENT
FORM OF SHORT FORM PATENT SECURITY AGREEMENT
PATENT SECURITY AGREEMENT, dated as of September 19, 2002, by
each of the entities listed on the signature pages hereof or which becomes a
party hereto pursuant to Section 7.10 (Additional Grantors) of the Security
Agreement referred to below (each a "Grantor" and, collectively, the
"Grantors"), in favor of Citicorp USA, Inc. ("Citicorp"), as administrative and
collateral agent for the Secured Parties (as defined in the Credit Agreement
referred to below) (in such capacity, the "Administrative Agent").
WITNESSETH:
WHEREAS, pursuant to the Credit Agreement, dated as of
September 19, 2002 (as the same may be amended, restated, supplemented or
otherwise modified from time to time, the "Credit Agreement"), among Swift &
Company (the "Company"), S&C Australia Holdco Pty. Ltd., Australia Meat Holdings
Pty. Ltd., S&C Holdco 3, Inc., the Lenders and Issuers party thereto, Citicorp
USA, Inc., as Administrative Agent for the Lenders and Issuers and as Australian
agent for the Lender and Issuers, JPMorgan Chase Bank, as syndication agent for
the Lenders and the Issuers, Citisecurities Limited, 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 the
Issuers have severally agreed to make extensions of credit to the Borrowers upon
the terms and subject to the conditions set forth therein;
WHEREAS, the Grantors are party to the Domestic Guaranty
pursuant to which they have guaranteed the Obligations; and
WHEREAS, all the Grantors are party to a Pledge and Security
Agreement of even date herewith in favor of the Administrative Agent (the
"Security Agreement") pursuant to which the Grantors are required to execute and
deliver this Patent Security Agreement;
NOW, THEREFORE, in consideration of the premises and to induce
the Lenders, the Issuers and the Administrative Agent to enter into the Credit
Agreement and to induce the Lenders and the Issuers to make their respective
extensions of credit to the Borrowers thereunder, each Grantor hereby agrees
with the Administrative Agent as follows:
SECTION 1. DEFINED TERMS
Unless otherwise defined herein, terms defined in the Credit
Agreement or in the Security Agreement and used herein have the meaning given to
them in the Credit Agreement or the Security Agreement.
SECTION 2. GRANT OF SECURITY INTEREST IN PATENT COLLATERAL
Each Grantor, as collateral security for the full, prompt and
complete payment and performance when due (whether at stated maturity, by
acceleration or otherwise) of the Secured Obligations of such Grantor, hereby
collaterally assigns, mortgages, pledges and hypothecates to the Administrative
Agent for the benefit of the Secured Parties, and grants to the Administrative
Agent for the benefit of the Secured Parties a lien on and security interest in,
all of
A6-1
its right, title and interest in, to and under the following Collateral of such
Grantor (the "Patent Collateral"):
(a) all of its Patents and Patent Licenses to which it is a
party, including, without limitation, those referred to on Schedule I hereto;
(b) all reissues, continuations or extensions of the
foregoing; and
(c) all Proceeds of the foregoing, including, without
limitation, any claim by Grantor against third parties for past, present or
future infringement or dilution of any Patent or any Patent licensed under any
Patent License.
SECTION 3. SECURITY AGREEMENT
The security interest granted pursuant to this Patent Security
Agreement is granted in conjunction with the security interest granted to the
Administrative Agent pursuant to the Security Agreement and each Grantor hereby
acknowledges and affirms that the rights and remedies of the Administrative
Agent with respect to the security interest in the Patent Collateral made and
granted hereby are more fully set forth in the Security Agreement, the terms and
provisions of which are incorporated by reference herein as if fully set forth
herein.
[SIGNATURE PAGES FOLLOW]
A6-2
IN WITNESS WHEREOF, each Grantor has caused this Patent
Security Agreement to be executed and delivered by its duly authorized offer as
of the date first set forth above.
Very truly yours,
[GRANTOR],
as Grantor
By:
----------------------------------
Name:
Title:
ACCEPTED AND AGREED
as of the date first above written:
CITICORP USA, INC.,
as Administrative Agent
By:
----------------------------------------
Name:
Title:
[SIGNATURE PAGE TO PATENT SECURITY AGREEMENT]
ACKNOWLEDGEMENT OF GRANTOR
STATE OF ________________)
) ss.
COUNTY OF _______________)
On this ___ day of ________, 20__ before me personally
appeared ______________________, proved to me on the basis of satisfactory
evidence to be the person who executed the foregoing instrument on behalf of
________________, who being by me duly sworn did depose and say that he is an
authorized officer of said corporation, that the said instrument was signed on
behalf of said corporation as authorized by its Board of Directors and that he
acknowledged said instrument to be the free act and deed of said corporation.
----------------------------
Notary Public
[ACKNOWLEDGEMENT OF GRANTOR FOR PATENT SECURITY AGREEMENT]
SCHEDULE I
TO
PATENT SECURITY AGREEMENT
PATENT REGISTRATIONS
A. REGISTERED PATENTS
[Include Patent Registration Number and Date]
B. PATENT APPLICATIONS
C. PATENT LICENSES
[Include complete legal description of agreement (name of agreement,
parties and date)]
A6-5
ANNEX 7
TO
PLEDGE AND SECURITY AGREEMENT
FORM OF SHORT FORM TRADEMARK SECURITY AGREEMENT
TRADEMARK SECURITY AGREEMENT, dated as of September 19, 2002,
by each of the entities listed on the signature pages hereof or which becomes a
party hereto pursuant to Section 7.10 (Additional Grantors) of the Security
Agreement referred to below (each a "Grantor" and, collectively, the
"Grantors"), in favor of Citicorp USA, Inc. ("Citicorp"), as administrative and
collateral agent for the Secured Parties (as defined in the Credit Agreement
referred to below) (in such capacity, the "Administrative Agent").
WITNESSETH:
WHEREAS, pursuant to the Credit Agreement, dated as of
September 19, 2002 (as the same may be amended, restated, supplemented or
otherwise modified from time to time, the "Credit Agreement"), among Swift &
Company (the "Company"), S&C Australia Holdco Pty. Ltd., Australia Meat Holdings
Pty. Ltd., S&C Holdco 3, Inc., the Lenders and Issuers party thereto, Citicorp
USA, Inc., as Administrative Agent for the Lenders and Issuers and as Australian
agent for the Lender and Issuers, JPMorgan Chase Bank, as syndication agent for
the Lenders and the Issuers, Citisecurities Limited, 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 the
Issuers have severally agreed to make extensions of credit to the Borrowers upon
the terms and subject to the conditions set forth therein;
WHEREAS, the Grantors are party to the Domestic Guaranty
pursuant to which they have guaranteed the Obligations; and
WHEREAS, all the Grantors are party to a Pledge and Security
Agreement of even date herewith in favor of the Administrative Agent (the
"Security Agreement") pursuant to which the Grantors are required to execute and
deliver this Trademark Security Agreement;
NOW, THEREFORE, in consideration of the premises and to induce
the Lenders, the Issuers and the Administrative Agent to enter into the Credit
Agreement and to induce the Lenders and the Issuers to make their respective
extensions of credit to the Borrowers thereunder, each Grantor hereby agrees
with the Administrative Agent as follows:
SECTION 1. DEFINED TERMS
Unless otherwise defined herein, terms defined in the Credit
Agreement or in the Security Agreement and used herein have the meaning given to
them in the Credit Agreement or the Security Agreement.
SECTION 2. GRANT OF SECURITY INTEREST IN TRADEMARK COLLATERAL
Each Grantor, as collateral security for the full, prompt and
complete payment and performance when due (whether at stated maturity, by
acceleration or otherwise) of the Secured Obligations of such Grantor, hereby
collaterally assigns, mortgages, pledges and hypothecates to the Administrative
Agent for the benefit of the Secured Parties, and grants to the Administrative
Agent for the benefit of the Secured Parties a lien on and security interest in,
all of
A7-1
its right, title and interest in, to and under the following Collateral of such
Grantor (the "Trademark Collateral"):
(a) all of its Trademarks and Trademark Licenses to which it
is a party, including, without limitation, those referred to on Schedule I
hereto;
(b) all reissues, continuations or extensions of the
foregoing;
(c) all goodwill of the business connected with the use of,
and symbolized by, each Trademark and each Trademark License; and
(d) all Proceeds of the foregoing, including, without
limitation, any claim by Grantor against third parties for past, present, future
(i) infringement or dilution of any Trademark or Trademark licensed under any
Trademark License or (ii) injury to the goodwill associated with any Trademark
or any Trademark licensed under any Trademark License.
SECTION 3. SECURITY AGREEMENT
The security interest granted pursuant to this Trademark
Security Agreement is granted in conjunction with the security interest granted
to the Administrative Agent pursuant to the Security Agreement and each Grantor
hereby acknowledges and affirms that the rights and remedies of the
Administrative Agent with respect to the security interest in the Trademark
Collateral made and granted hereby are more fully set forth in the Security
Agreement, the terms and provisions of which are incorporated by reference
herein as if fully set forth herein.
[SIGNATURE PAGES FOLLOW]
A7-2
SCHEDULE I
TO
TRADEMARK SECURITY AGREEMENT
TRADEMARK REGISTRATIONS
A. REGISTERED TRADEMARKS
[Include trademark registration number and date of registration]
B. TRADEMARK APPLICATIONS
C. TRADEMARK LICENSES
[Include complete legal description of agreement (name of agreement,
parties and date)]
A7-3
