EXHIBIT 10.42
NON-U.S. GUARANTY
GUARANTY, dated as of September 19, 2002, by S&C Australia
Holdco Pty. Ltd. (ACN: 000 000 000), x Xxx Xxxxx Xxxxx, Xxxxxxxxx company
("Australian Holdings"), Australia Meat Holdings Pty. Limited (ACN: 011 062 338)
(the "Australian Company" and, together with "Australian Holdings", the
"Australian Borrowers"), each of the entities listed on the signature pages
hereof or that becomes a party hereto pursuant to Section 27 (Additional
Guarantors) hereof (collectively with the Australian Borrowers, the
"Guarantors," and each a "Guarantor"), in favor of the Administrative Agent,
each Lender, each Issuer, Swift & Company (the "Company"), and each other holder
of a Guarantied Obligation (as each such term is defined below) (each, a
"Guarantied Party" and, collectively, the "Guarantied Parties").
WITNESSETH:
WHEREAS, pursuant to the Credit Agreement dated as of
September 19, 2002 (together with all appendices, exhibits and schedules thereto
and as the same may be amended, restated, supplemented or otherwise modified
from time to time, the "Credit Agreement"; capitalized terms defined therein and
used herein having the meanings given to them in the Credit Agreement) among the
Company, the Australian Borrowers (collectively with the Company, the
"Borrowers"), S&C Holdco 3, Inc., ("Holdings"), the Lenders and Issuers party
thereto, Citicorp USA, Inc., as administrative and collateral agent for the
Lenders and Issuers and as Australian agent for the Lenders and Issuers,
JPMorgan Chase Bank, as syndication agent for the Lenders and Issuers,
Citisecurities Limited (ACN: 000 000 000) as Australian collateral trustee for
the Lenders and Issuers and General Electric Capital Corporation, U.S. Bank
National Association and Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A.,
"Rabobank International", New York Branch each as co-documentation agents for
the Lenders and Issuers, the Lenders and Issuers have severally agreed to make
extensions of credit to the Borrowers upon the terms and subject to the
conditions set forth therein;
WHEREAS, pursuant to the Australian Intercompany Credit
Agreement dated as of September 19, 2002 (the "Intercompany Credit Agreement"),
between Australian Holdings and the Company, the Company has agreed to make
advances (the "Intercompany Advances") to Australian Holdings;
WHEREAS, pursuant to the Loan Documents executed by the
Company in favor of the Guarantied Parties, the Company has agreed to assign all
of its rights and remedies under and in respect of the Intercompany Credit
Agreement to the Administrative Agent as collateral for its Secured Obligations;
WHEREAS, each Affiliate Guarantor (as defined below) is a
direct or indirect Subsidiary of the Company and is a direct or indirect
Subsidiary or Affiliate of Australian Holdings;
WHEREAS, each Guarantor will receive substantial direct and
indirect benefits from the making of the Loans, the issuance of the Letters of
Credit and the granting of the other financial accommodations to the Australian
Borrowers under the Credit Agreement and the making of the Intercompany Advances
to Australian Holdings under the Australian Intercompany Credit Agreement; 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
NON-U.S. GUARANTY
SWIFT & COMPANY
and of the Company to make the Intercompany Advances under the Australian
Intercompany Credit Agreement that the Guarantors shall have executed and
delivered this Guaranty for the benefit of the Guarantied Parties;
NOW, THEREFORE, in consideration of the premises set forth
above, the terms and conditions contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
SECTION 1 DEFINITIONS
The following terms shall have the following meanings in this
Guaranty:
"Affiliate Guarantor" means each Guarantor other than the
Australian Borrowers.
"Guarantied Obligations" means (a) in the case of Australian
Holdings, the Obligations of the Australian Company under any Loan Document, (b)
in the case of the Australian Company, the Obligations of Australian Holdings
under any Loan Document, including the obligations of Australian Holdings under
the Australian Intercompany Credit Agreement and (c) in the case of the other
Guarantors, the Obligations of the Australian Borrowers under any Loan Document,
including the obligations of Australian Holdings under the Australian
Intercompany Credit Agreement.
"Mexican Guarantor" means any Guarantor organized and existing
under the laws of Mexico (or any state thereof).
"Mexico" means the United Mexican States.
SECTION 2 GUARANTY
(a) To induce the Lenders to make the Loans, the Issuers to
issue Letters of Credit and the Company to make the Intercompany Advances, each
Guarantor hereby absolutely, unconditionally and irrevocably guarantees, jointly
with the other Guarantors and severally, as primary obligor and not merely as
surety, the full and punctual payment when due and in the currency due, whether
at stated maturity or earlier, by reason of acceleration, mandatory prepayment
or otherwise in accordance herewith or any other Loan Document, of all the
Guarantied Obligations of such Guarantor, whether or not from time to time
reduced or extinguished or hereafter increased or incurred, whether or not
recovery may be or hereafter may become barred by any statute of limitations,
whether or not enforceable as against either Australian Borrower, whether now or
hereafter existing, and whether due or to become due, including principal,
interest (including interest at the contract rate applicable upon default
accrued or accruing after the commencement of any proceeding under the
Bankruptcy Code, or any applicable provisions of comparable state law,
provincial law, or Australian law, whether or not such interest is an allowed
claim in such proceeding), fees and costs of collection. This Guaranty
constitutes a guaranty of payment and not of collection.
(b) Each Guarantor further agrees that, if (i) any payment
made by the Australian Borrowers or any other Person and applied to the
Guarantied 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 (ii) the proceeds of Collateral applied to the
Guarantied
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Obligations are required to be returned by any Guarantied Party to either
Australian Borrower, its estate, trustee, receiver or any other party, including
any Guarantor, under any bankruptcy law, equitable cause or any other
Requirement of Law, then, to the extent of such payment or repayment, such
Guarantor's liability hereunder (and any Lien or other Collateral securing such
liability) shall be and remain in full force and effect, as fully as if such
payment had never been made. If, prior to any of the foregoing, this Guaranty
shall have been cancelled or surrendered (and if any Lien or other Collateral
securing such Guarantor's liability hereunder shall have been released or
terminated by virtue of such cancellation or surrender), this Guaranty (and such
Lien or other Collateral) shall be reinstated in full force and effect, and such
prior cancellation or surrender shall not diminish, release, discharge, impair
or otherwise affect the obligations of any such Guarantor in respect of the
amount of such payment (or any Lien or other Collateral securing such
obligation).
(c) The Administrative Agent enters into this Guaranty in its
capacity as agent for the Lenders from time to time. The rights and obligations
of the Administrative Agent under this agreement at any time are the rights and
obligations of the Lenders at that time. Each Lender has (subject to the terms
of the Loan Documents) a several entitlement to each such right, and a several
liability in respect of each such obligation, in the proportions described in
the Loan Documents. The rights, remedies and discretions of the Lenders, or any
of them, under this Guaranty may be exercised by the Administrative Agent. No
party to this Guaranty is obliged to inquire whether an exercise by the
Administrative Agent of any such right, remedy or discretion is within the
Administrative Agent's authority as agent for the Lenders.
SECTION 3 LIMITATION OF GUARANTY
Any term or provision of this Guaranty or any other Loan
Document to the contrary notwithstanding, the maximum aggregate amount of the
Guarantied Obligations of any Affiliate Guarantor for which such Affiliate
Guarantor shall be liable shall not exceed the maximum amount for which such
Affiliate Guarantor can be liable without rendering this Guaranty or any other
Loan Document, as it relates to such Affiliate Guarantor, subject to avoidance
under applicable law relating to fraudulent conveyance or fraudulent transfer
(including Section 548 of the Bankruptcy Code or any applicable provisions of
comparable state law, provincial law or Australian law) (collectively,
"Fraudulent Transfer Laws"), in each case after giving effect (a) to all other
liabilities of such Affiliate Guarantor, contingent or otherwise, that are
relevant under such Fraudulent Transfer Laws (specifically excluding, however,
any liabilities of such Affiliate Guarantor in respect of intercompany
Indebtedness to the Australian Borrowers to the extent that such Indebtedness
would be discharged in an amount equal to the amount paid by such Affiliate
Guarantor hereunder) and (b) to the value as assets of such Affiliate Guarantor
(as determined under the applicable provisions of such Fraudulent Transfer Laws)
of any rights to subrogation, contribution, reimbursement, indemnity or similar
rights held by such Affiliate Guarantor pursuant to (i) applicable Requirements
of Law, (ii) Section 4 (Contribution) of this Guaranty or (iii) any other
Contractual Obligations providing for an equitable allocation among such
Affiliate Guarantor and other Subsidiaries or Affiliates of the Borrowers of
obligations arising under this Guaranty or other guaranties of the Guarantied
Obligations by such parties.
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SECTION 4 CONTRIBUTION
To the extent that any Affiliate Guarantor shall be required
hereunder to pay a portion of the Guarantied Obligations exceeding the greater
of (a) the amount of the economic benefit actually received by such Affiliate
Guarantor from the Revolving Credit Facility and the Term Loans and the other
financial accommodations provided to the Borrowers under the Loan Documents and
(b) the amount such Affiliate Guarantor would otherwise have paid if such
Affiliate Guarantor had paid the aggregate amount of such Guarantied Obligations
(excluding the amount thereof repaid by the Australian Borrowers) in the same
proportion as such Affiliate Guarantor's net worth at the date enforcement is
sought hereunder bears to the aggregate net worth of all the Affiliate
Guarantors who have guaranteed such Guarantied Obligations pursuant to the terms
hereof at the date enforcement is sought hereunder, then such Guarantor shall be
reimbursed by such other Affiliate Guarantors for the amount of such excess, pro
rata, based on the respective net worths of such other Affiliate Guarantors at
the date enforcement hereunder is sought.
SECTION 5 AUTHORIZATION; OTHER AGREEMENTS
The Guarantied Parties are hereby authorized, without notice
to, or demand upon, any Guarantor, which notice and demand requirements each are
expressly waived hereby, and without discharging or otherwise affecting the
obligations of such Guarantor hereunder (which obligations shall remain absolute
and unconditional notwithstanding any such action or omission to act), from time
to time, to do each of the following:
(a) supplement, renew, extend, accelerate or otherwise change
the time for payment of, or other terms relating to, the Guarantied Obligations,
or any part of them, or otherwise modify, amend or change the terms of any
promissory note or other agreement, document or instrument (including the other
Loan Documents) now or hereafter executed by either Australian Borrower and
delivered to the Guarantied Parties or any of them, including any increase or
decrease of principal or the rate of interest thereon;
(b) waive or otherwise consent to noncompliance with any
provision of any instrument evidencing the Guarantied Obligations, or any part
thereof, or any other instrument or agreement in respect of the Guarantied
Obligations (including the other Loan Documents) now or hereafter executed by
either Australian Borrower and delivered to the Guarantied Parties or any of
them;
(c) accept partial payments on the Guarantied Obligations;
(d) receive, take and hold additional security or collateral
for the payment of the Guarantied Obligations or any part of them and exchange,
enforce, waive, substitute, liquidate, terminate, abandon, fail to perfect,
subordinate, transfer, otherwise alter and release any such additional security
or collateral;
(e) settle, release, compromise, collect or otherwise
liquidate the Guarantied Obligations or accept, substitute, release, exchange or
otherwise alter, affect or impair any security or collateral for the Guarantied
Obligations or any part of them or any other guaranty therefor, in any manner;
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(f) add, release or substitute any one or more other
guarantors, makers or endorsers of the Guarantied Obligations or any part of
them and otherwise deal with either Australian Borrower or any other guarantor,
maker or endorser;
(g) apply to the Guarantied Obligations any payment or
recovery (x) from either Australian Borrower, from any guarantor, maker or
endorser of the Guarantied Obligations or any part of them or (y) from any
Guarantor to the Guarantied Obligations in such order as provided herein, in
each case whether such Guarantied Obligations are secured or unsecured or
guaranteed or not guaranteed by others;
(h) apply to the Guarantied Obligations of any Guarantor any
payment or recovery from such Guarantor or sums realized from security furnished
by such Guarantor upon its indebtedness or obligations to the Guarantied Parties
or any of them, in each case whether or not such indebtedness or obligations
relate to such Guarantied Obligations; and
(i) refund at any time any payment received by any Guarantied
Party in respect of any of the Guarantied Obligations, and payment to such
Guarantied Party of the amount so refunded shall be fully guaranteed hereby even
though prior thereto this Guaranty shall have been cancelled or surrendered (or
any release or termination of any Collateral by virtue thereof), and such prior
cancellation or surrender shall not diminish, release, discharge, impair or
otherwise affect the obligations of any Guarantor hereunder in respect of the
amount so refunded (and any Collateral so released or terminated shall be
reinstated with respect to such obligations);
even if any right of reimbursement or subrogation or other right or remedy of
any Guarantor is extinguished, affected or impaired by any of the foregoing
(including any election of remedies by reason of any judicial, non-judicial or
other proceeding in respect of the Guarantied Obligations that impairs any
subrogation, reimbursement or other right of such Guarantor).
SECTION 6 GUARANTY ABSOLUTE AND UNCONDITIONAL
Each Guarantor hereby waives any defense of a surety or
guarantor or any other obligor on any obligations arising in connection with or
in respect of any of the following and hereby agrees that its obligations under
this Guaranty are absolute and unconditional and shall not be discharged or
otherwise affected as a result of any of the following:
(a) the invalidity or unenforceability of any obligation of
either Australian Borrower under the Credit Agreement or any other Loan Document
or any other agreement or instrument relating thereto, or any security for, or
other guaranty of the Guarantied Obligations or any part of them, or the lack of
perfection or continuing perfection or failure of priority of any security for
the Guarantied Obligations or any part of them;
(b) the absence of any attempt to collect the Guarantied
Obligations or any part of them from either Australian Borrower or other action
to enforce the same;
(c) failure by any Guarantied Party to take any steps to
perfect and maintain any Lien on, or to preserve any rights to, any Collateral;
(d) any Guarantied Party's election, in any proceeding
instituted under chapter 11 of the Bankruptcy Code, of the application of
Section 1111(b)(2) of the Bankruptcy Code or any applicable provisions of
comparable state law, provincial law or Australian law;
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(e) any borrowing or grant of a Lien by either Australian
Borrower, as debtor-in-possession, or extension of credit, under Section 364 of
the Bankruptcy Code or any applicable provisions of comparable state law,
provincial law or Australian law;
(f) the disallowance, under Section 502 of the Bankruptcy Code
or any applicable provisions of comparable state law, provincial law or
Australian law, of all or any portion of any Guarantied Party's claim (or
claims) for repayment of the Guarantied Obligations;
(g) any use of cash collateral under Section 363 of the
Bankruptcy Code or any applicable provisions of comparable state law, provincial
law or Australian law;
(h) any agreement or stipulation as to the provision of
adequate protection in any bankruptcy proceeding;
(i) the avoidance of any Lien in favor of the Guarantied
Parties or any of them for any reason;
(j) any bankruptcy, insolvency, reorganization, arrangement,
readjustment of debt, liquidation or dissolution proceeding commenced by or
against either Australian Borrower, any Guarantor or any of the Borrowers' other
Subsidiaries, including any discharge of, or bar or stay against collecting, any
Obligation (or any part of them or interest thereon) in or as a result of any
such proceeding;
(k) failure by any Guarantied Party to file or enforce a claim
against either Australian Borrower or their estates in any bankruptcy or
insolvency case or proceeding;
(l) any action taken by any Guarantied Party if such action is
authorized hereby;
(m) any election following the occurrence of an Event of
Default by any Guarantied Party to proceed separately against the personal
property Collateral in accordance with such Guarantied Party's rights under the
UCC (or any applicable provisions of comparable Australian law) or, if the
Collateral consists of both personal and real property, to proceed against such
personal and real property in accordance with such Guarantied Party's rights
with respect to such real property; or
(n) any other circumstance that might otherwise constitute a
legal or equitable discharge or defense of a surety or guarantor or any other
obligor on any obligations, other than the payment in full of the Guarantied
Obligations of such Guarantor.
SECTION 7 TAXES
(a) Any and all payments or crediting of amounts by the
Guarantors under and otherwise in connection with this Guaranty shall be made
free and clear of and without deduction for any and all present or future taxes,
levies, imposts, deductions, charges or withholdings, and all liabilities with
respect thereto, excluding (i) taxes imposed on each Guarantied Party's net
income, and capital and franchise taxes imposed on it by the jurisdiction (or
any political subdivision thereof) under the laws of which such Guarantied Party
is organized and by any jurisdiction asserting taxing authority as a result of
such Guarantied Party's having a past or present connection with it (all such
non-excluded taxes, levies, imposts, deductions, charges, withholdings and
liabilities being hereinafter referred to as "Taxes"). If any Taxes shall be
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required by law to be deducted from or in respect of any sum payable or credited
hereunder to any Guarantied Party (w) the sum payable shall be increased as may
be necessary so that after making all required deductions in respect of Taxes
(including deductions applicable to additional sums payable under this Section
7) such Guarantied Party receives an amount equal to the sum it would have
received had no such deductions been made, (x) the Guarantor shall make such
deductions, (y) the Guarantor shall pay the full amount deducted to the relevant
taxing authority or other authority in accordance with applicable law and (z)
the Guarantor shall promptly deliver to such Guarantied Party the original or a
certified copy of a receipt evidencing such payment or other evidence of payment
reasonably acceptable to such Guarantied Party.
(b) In addition, each Guarantor shall pay any present or
future stamp or documentary taxes or any other excise or property taxes, charges
or similar levies, and all liabilities with respect thereto, in each case
arising from any payment made or credited under or in connection with this
Guaranty or from the execution, delivery or registration of, or otherwise with
respect to, this Guaranty (collectively, "Other Taxes").
(c) Each Guarantor shall indemnify each Guarantied Party for
the full amount of Taxes or Other Taxes (including any Taxes or Other Taxes
imposed by any jurisdiction on amounts payable under this Section 7) paid by
such Guarantied Party and any liability (including for penalties, interest and
expenses) arising therefrom or with respect thereto, whether or not such Taxes
or Other Taxes were correctly or legally asserted. This indemnification shall be
made within 30 days from the date such Guarantied Party makes written demand
therefor.
(d) Within 30 days after the date of any payment by any
Guarantor of Taxes or Other Taxes pursuant to the indemnity set forth in clause
(c) above (other than by way of reimbursement directly paid to the Guarantied
Party), such Guarantor shall furnish each applicable Guarantied Party with the
original or a certified copy of a receipt evidencing payment thereof or other
evidence of payment thereof reasonably acceptable to the Guarantied Party.
(e) Without prejudice to the survival of any other agreement
of the Guarantors, the Guarantied Parties, the Administrative Agent and the
Lenders hereunder, the agreements and obligations of the Guarantors contained in
this Section 7 shall survive the payment in full of all other obligations of the
Guarantors under this Guaranty.
(f) Each Guarantied Party when claiming any additional amounts
payable pursuant to this Section 7 shall use reasonable efforts (consistent with
its internal policy and legal and regulatory restrictions) to avoid the need
for, or reduce the amount of, any such additional amounts which would be payable
or may thereafter accrue and would not, in the sole determination of such
Guarantied Party reasonably exercised, be otherwise disadvantageous to such
Guarantied Party. If such Guarantied Party is not, with reasonable efforts, able
to take such action, then it shall use its reasonable efforts to complete such
tax forms and make such filings as would avoid the need for, or reduce the
amount of, any such additional amounts which would be payable or may thereafter
accrue; provided, however, that completion of such forms and making of such
filings would not in the sole discretion of such Guarantied Party reasonably
exercised be disadvantageous to it.
(g) If any Guarantied Party determines in its sole discretion
exercised reasonably that it has received or has been granted a credit against,
or remission for, or a refund or a repayment of any Taxes (i) as a result of any
Guarantor's deduction and payment to a taxing
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authority of an amount pursuant to clause (a) above or (ii) with respect to
which such Guarantor has paid an amount to such Guarantied Party pursuant to
clause (c) above, then such Guarantied Party shall, within 30 days, pay such
Guarantor the lesser of (y) the credit, remission, refund or repayment of Taxes
received or granted and (z) the amount paid by such Guarantor pursuant to this
Section 7.
SECTION 8 WAIVERS
Each Guarantor hereby waives diligence, promptness,
presentment, demand for payment or performance and protest and notice of
protest, notice of acceptance (including in the case of any Mexican Guarantor,
any right to which it may be entitled to the extent applicable under Articles
2814, 2815, 2816, 2817, 2818, 2819, 2820, 2821, 2822, 2823, 2842, 2845 and 2846
of the Mexican Federal Civil Code and the correlative articles of the Civil
Codes of the different states of Mexico), and any other notice in respect of the
Guarantied Obligations or any part of them, and any defense arising by reason of
any disability or other defense of either Australian Borrower. Each Guarantor
shall not, until the Guarantied Obligations are irrevocably paid in full and the
Commitments have been terminated, assert any claim or counterclaim it may have
against either Australian Borrower in respect of the Guarantied Obligations or
set off any of its obligations to either Australian Borrower against any
obligations of such Australian Borrower to it in respect of the Guarantied
Obligations. In connection with the foregoing, each Guarantor covenants that its
obligations hereunder shall not be discharged, except by complete performance.
SECTION 9 RELIANCE
Each Guarantor hereby assumes responsibility for keeping
itself informed of the financial condition of the Australian Borrowers and any
endorser and other guarantors of all or any part of the Guarantied Obligations,
and of all other circumstances bearing upon the risk of nonpayment of the
Guarantied Obligations, or any part thereof, that diligent inquiry would reveal,
and each Guarantor hereby agrees that no Guarantied Party shall have any duty to
advise any Guarantor of information known to it regarding such condition or any
such circumstances. In the event any Guarantied Party, in its sole discretion,
undertakes at any time or from time to time to provide any such information to
any Guarantor, such Guarantied Party shall be under no obligation (a) to
undertake any investigation not a part of its regular business routine, (b) to
disclose any information that such Guarantied Party, pursuant to accepted or
reasonable commercial finance or banking practices, wishes to maintain
confidential or (c) to make any other or future disclosures of such information
or any other information to any Guarantor.
SECTION 10 WAIVER OF SUBROGATION AND CONTRIBUTION RIGHTS
Until the Obligations have been irrevocably paid in full and
the Commitments have been terminated, the Guarantors shall not enforce or
otherwise exercise any right of subrogation to any of the rights of the
Guarantied Parties or any part of them against either Australian Borrower or any
right of reimbursement or contribution or similar right against either
Australian Borrower by reason of this Guaranty or by any payment made by any
Guarantor in respect of the Guarantied Obligations.
SECTION 11 SUBORDINATION
Each Guarantor hereby agrees that any Indebtedness of either
Australian Borrower now or hereafter owing to any Guarantor, whether heretofore,
now or hereafter created
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(the "Guarantor Subordinated Debt"), is hereby subordinated to all of the
Guarantied Obligations and that, except as permitted under Section 8.6
(Restricted Payments) of the Credit Agreement, the Guarantor Subordinated Debt
shall not be paid in whole or in part until the Guarantied Obligations have been
paid in full and this Guaranty is terminated and of no further force or effect.
No Guarantor shall accept any payment of or on account of any Guarantor
Subordinated Debt at any time in contravention of the foregoing. Upon the
occurrence and during the continuance of an Event of Default, the Australian
Borrowers shall pay to the Administrative Agent any payment of all or any part
of the Guarantor Subordinated Debt and any amount so paid to the Administrative
Agent shall be applied to payment of the Guarantied Obligations as provided in
Section 2.13(g) (Payments and Computations) of the Credit Agreement. Each
payment on the Guarantor Subordinated Debt received in violation of any of the
provisions hereof shall be deemed to have been received by such Guarantor as
trustee for the Guarantied Parties and shall be paid over to the Administrative
Agent immediately on account of the Guarantied Obligations, but without
otherwise affecting in any manner such Guarantor's liability hereof. Each
Guarantor agrees to file all claims against either Australian Borrower in any
bankruptcy or other proceeding in which the filing of claims is required by law
in respect of any Guarantor Subordinated Debt, and the Administrative Agent
shall be entitled to all of such Guarantor's rights thereunder. If for any
reason a Guarantor fails to file such claim at least ten Business Days prior to
the last date on which such claim should be filed, such Guarantor hereby
irrevocably appoints the Administrative Agent as its true and lawful
attorney-in-fact and is hereby authorized to act as attorney-in-fact in such
Guarantor's name to file such claim or, in the Administrative Agent's
discretion, to assign such claim to and cause proof of claim to be filed in the
name of the Administrative Agent or its nominee. In all such cases, whether in
administration, bankruptcy or otherwise, the person or persons authorized to pay
such claim shall pay to the Administrative Agent the full amount payable on the
claim in the proceeding, and, to the full extent necessary for that purpose,
each Guarantor hereby assigns to the Administrative Agent all of such
Guarantor's rights to any payments or distributions to which such Guarantor
otherwise would be entitled. If the amount so paid is greater than such
Guarantor's liability hereunder, the Administrative Agent shall pay the excess
amount to the party entitled thereto. In addition, each Guarantor hereby
irrevocably appoints the Administrative Agent as its attorney-in-fact to
exercise all of such Guarantor's voting rights in connection with any bankruptcy
proceeding or any plan for the reorganization of either Australian Borrower.
SECTION 12 DEFAULT; REMEDIES
The obligations of each Guarantor hereunder are independent of
and separate from the Guarantied Obligations. If any of the Guarantied
Obligations are not paid when due, or upon any Event of Default hereunder or
upon any default by either Australian Borrower as provided in any other
instrument or document evidencing all or any part of the Guarantied Obligations,
the Administrative Agent may, at its sole election, proceed directly and at
once, without notice, against any Guarantor of such Guarantied Obligations to
collect and recover the full amount or any portion of the Guarantied Obligations
then due, without first proceeding against either Australian Borrower or any
other guarantor of the Guarantied Obligations, or against any Collateral under
the Loan Documents or joining either Australian Borrowers or any other guarantor
in any proceeding against any Guarantor. At any time after maturity of the
Obligations, the Administrative Agent may (unless the Guarantied Obligations
have been irrevocably paid in full), without notice to any Guarantor and
regardless of the acceptance of any Collateral for the payment hereof,
appropriate and apply toward the payment of the Guarantied Obligations (a) any
indebtedness due or to become due from any Guarantied Party to such
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Guarantor and (b) any moneys, credits or other property belonging to such
Guarantor at any time held by or coming into the possession of any Guarantied
Party or any of its respective Affiliates.
SECTION 13 IRREVOCABILITY
This Guaranty shall be irrevocable as to any and all of the
Guarantied Obligations (or any part thereof) until the Commitments have been
terminated and all monetary Guarantied Obligations then outstanding have been
irrevocably repaid in cash, at which time this Guaranty shall automatically be
cancelled with respect to such repaid Guarantied Obligations. Upon such
cancellation and at the written request of any Guarantor or its successors or
assigns, and at the cost and expense of such Guarantor or its successors or
assigns, the Administrative Agent shall execute in a timely manner a
satisfaction of this Guaranty and such instruments, documents or agreements as
are necessary or desirable to evidence the termination of this Guaranty.
SECTION 14 SETOFF
Upon the occurrence and during the continuance of an Event of
Default, each Guarantied Party and each Affiliate of a Guarantied Party may,
without notice to any Guarantor and regardless of the acceptance of any security
or collateral for the payment hereof, appropriate and apply toward the payment
of all or any part of the Guarantied Obligations of any Guarantor (i) any
indebtedness due or to become due from such Guarantied Party or Affiliate to
such Guarantor and (ii) any moneys, credits or other property belonging to such
Guarantor, at any time held by, or coming into, the possession of such
Guarantied Party or Affiliate.
SECTION 15 NO MARSHALLING
Each Guarantor consents and agrees that no Guarantied Party or
Person acting for or on behalf of any Guarantied Party shall be under any
obligation to marshal any assets in favor of any Guarantor or against or in
payment of any or all of the Guarantied Obligations.
SECTION 16 ENFORCEMENT; AMENDMENTS; WAIVERS
No delay on the part of any Guarantied Party in the exercise
of any right or remedy arising under this Guaranty, the Credit Agreement, any
other Loan Document or otherwise with respect to all or any part of the
Guarantied Obligations, the Collateral or any other guaranty of or security for
all or any part of the Guarantied Obligations shall operate as a waiver thereof,
and no single or partial exercise by any such Person of any such right or remedy
shall preclude any further exercise thereof. No modification or waiver of any
provision of this Guaranty shall be binding upon any Guarantied Party, except as
expressly set forth in a writing duly signed and delivered by the party making
such modification or waiver. Failure by any Guarantied Party at any time or
times hereafter to require strict performance by the Australian Borrowers, any
Guarantor, any other guarantor of all or any part of the Guarantied Obligations
or any other Person of any provision, warranty, term or condition contained in
any Loan Document now or at any time hereafter executed by any such Persons and
delivered to any Guarantied Party shall not waive, affect or diminish any right
of any Guarantied Party at any time or times hereafter to demand strict
performance thereof and such right shall not be deemed to have been waived by
any act or knowledge of any Guarantied Party, or its respective agents, officers
or employees, unless such waiver is contained in an instrument in writing,
directed and delivered to the Australian Borrowers or such Guarantor, as
applicable, specifying such waiver, and is signed
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NON-U.S. GUARANTY
SWIFT & COMPANY
by the party or parties necessary to give such waiver under the Credit
Agreement. No waiver of any Event of Default by any Guarantied Party shall
operate as a waiver of any other Event of Default or the same Event of Default
on a future occasion, and no action by any Guarantied Party permitted hereunder
shall in any way affect or impair any Guarantied Party's rights and remedies or
the obligations of any Guarantor under this Guaranty. Any determination by a
court of competent jurisdiction of the amount of any principal or interest owing
by the Australian Borrowers to a Guarantied Party shall be conclusive and
binding on each Guarantor irrespective of whether such Guarantor was a party to
the suit or action in which such determination was made.
SECTION 17 SUCCESSORS AND ASSIGNS
(a) This Guaranty shall be binding upon each Guarantor and
upon the successors and assigns of such Guarantors and shall inure to the
benefit of the Guarantied Parties and their respective successors and assigns;
all references herein to the Australian Borrowers and to the Guarantors shall be
deemed to include their respective successors and assigns. The successors and
assigns of the Guarantors and the Australian Borrowers shall include, without
limitation, their respective receivers, trustees and debtors-in-possession. All
references to the singular shall be deemed to include the plural where the
context so requires.
(b) Each party to this Guaranty acknowledges and agrees that
any changes (in accordance with the provisions of the Loan Documents) in the
identity of the persons from time to time comprising the Lenders gives rise to
an equivalent change in the Lenders, without any further act. Upon such an
occurrence, the persons then comprising the Lenders are vested with the rights,
remedies and discretions and assume the obligations of the Lender under this
Guaranty (as described in Section 2(b) above). Each party to this agreement
irrevocably authorizes the Administrative Agent to give effect to the change in
Lender contemplated in this Section 17(b) by countersigning an Assignment and
Acceptance.
(c) The Company hereby assigns all of its rights and remedies
as a Guarantied Party in respect of each Guarantor's guarantee of Australian
Holdings' obligations under the Intercompany Credit Agreement to the
Administrative Agent and each other Guarantor hereby acknowledges and consents
to such assignment.
SECTION 18 REPRESENTATIONS AND WARRANTIES; COVENANTS
(a) Each Affiliate Guarantor hereby (i) represents and
warrants that the representations and warranties as to it made by the Borrowers
in Article IV (Representations and Warranties) of the Credit Agreement are true
and correct on each date as required by Section 3.2(b)(i) (Conditions Precedent
to Each Loan and Letter of Credit) of the Credit Agreement and (ii) agrees to
take, or refrain from taking, as the case may be, each action necessary to be
taken or not taken, as the case may be, so that no Default or Event of Default
is caused by the failure to take such action or to refrain from taking such
action by such Guarantor.
(b) Ranking. Each Guarantor (other than the Australian
Borrowers and each of their Subsidiaries), hereby represents, warrants and
covenants that the Guarantied Obligations of such Guarantor under the Loan
Documents are direct, unconditional, unsecured and
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NON-U.S. GUARANTY
SWIFT & COMPANY
unsubordinated general obligations of such Guarantor, and rank, and will at all
times rank, at least pari passu in right and priority of payment with all other
present and future outstanding unsecured and unsubordinated Indebtedness of such
Guarantor, other than (i) statutorily preferred obligations, (ii) in Mexico, in
any bankruptcy proceeding initiated in Mexico pursuant to the laws of Mexico,
labor claims, claims of tax authorities for unpaid taxes, social security
quotas, workers' housing fund quotas, retirement fund quotas, and (iii) in
Japan, in any corporate reorganization or civil reorganization proceedings
initiated in Japan pursuant to the laws of Japan, claims of tax authorities for
unpaid taxes, and statutorily preferred obligations that arise as a matter of
law; provided, however, that nothing contained in this Section shall obligate
the Lenders to share Collateral with any other creditor of such Guarantor or
obligate any other creditor of such Guarantor to share its collateral with the
Lenders (subject to Section 11.7 (Sharing of Payments, Etc.) of the Credit
Agreement) and unsubordinated creditors of such Guarantor.
(c) No Immunity. Each Guarantor hereby represents and warrants
that (i) this Agreement and the other Loan Documents and the transactions
contemplated hereby and thereby (including the endorsement of the Notes and the
performance by such Guarantor of its obligations thereunder) constitute private
civil and commercial acts (and not public or governmental acts) of such
Guarantor, and such Guarantor is subject to private civil and commercial law
with respect to its obligations under the Loan Documents and (ii) such Guarantor
is not entitled to any immunity (whether sovereign or otherwise) from suit,
jurisdiction of any court or from any legal process (whether through service of
notice, attachment prior to judgment, attachment in aid of execution or
otherwise) with respect to itself, any Collateral or any other assets of the
Loan Parties (including any legal process to enforce any Collateral Document or
any other Loan Document or to collect the Guarantied Obligations). Without
limiting the generality of the foregoing, the waivers set forth in this Section
18(c) shall be effective to the fullest extent now or hereafter permitted under
the Foreign Sovereign Immunities Act of 1976 (as amended, and together with any
successor legislation) and are, and are intended to be, irrevocable for purposes
thereof.
(d) Legal Form. Each Mexican Guarantor hereby represents and
warrants that (i) this Agreement is in proper legal form under the law of Mexico
for the enforcement thereof against such Mexican Guarantor under such law, and
if it were stated to be governed by such law, it would constitute a legal, valid
and binding obligation of such Mexican Guarantor under such law, enforceable in
accordance with its terms and (ii) all formalities required in Mexico for the
validity and enforceability of the Loan Documents have been accomplished and no
Taxes are required to be paid and no notarization is required for the validity
and enforceability hereof; provided, however, that, in the event any legal
proceedings are brought to the courts of Mexico or Japan, a Spanish or Japanese
translation, respectively, of the documents required in such proceedings needs
to be prepared by translator, which translator must be court approved for legal
proceedings in Mexico, and would have to be approved by such court after the
defendant had been given an opportunity to be heard with respect to the accuracy
of the translation, and proceedings would thereafter be based upon the
translated documents, and, in the event any legal proceedings are brought.
SECTION 19 USE OF ENGLISH LANGUAGE
This Agreement and each of the other Loan Documents have been
negotiated and executed in the English language. All certificates, reports,
notices and other documents and communications given or delivered pursuant to
this Agreement (including, without limitation, any modifications or supplements
hereto) or the other Loan Documents shall be in the English
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NON-U.S. GUARANTY
SWIFT & COMPANY
language, or accompanied by a certified English language translation thereof,
and the English language version of any such document and communication shall
control for all purposes under this Agreement, the Credit Agreement, the Notes
and any other Loan Document.
SECTION 20 GOVERNING LAW
This Guaranty and the rights and obligations of the parties
hereto shall be governed by, and construed and interpreted in accordance with,
the law of the State of New York.
SECTION 21 SUBMISSION TO JURISDICTION; SERVICE OF PROCESS
(a) Any legal action or proceeding with respect to this
Guaranty, and any other Loan Document, may be brought in the courts of the State
of New York or of the United States of America for the Southern District of New
York, and, by execution and delivery of this Guaranty, each Guarantor, in
consideration of a similar submission made by the Guarantied Parties in the
Credit Agreement, hereby accepts for itself and in respect of its property,
generally and unconditionally, the jurisdiction of the aforesaid courts. The
parties hereto hereby irrevocably waive any objection, including any objection
to the laying of venue or based on the grounds of forum non conveniens, that any
of them may now or hereafter have to the bringing of any such action or
proceeding in such respective jurisdictions.
(b) Each Guarantor hereby irrevocably designates, appoints and
empowers CT Corporation System (telephone number: 000-000-0000) (telecopy
number: 212-894-8690) (address: 000 Xxxxxx Xxxxxx, Xxx Xxxx, X.X. 10011) (the
"Process Agent"), in the case of any suit, action or proceeding brought in the
United States of America as its designee, appointee and agent to receive, accept
and acknowledge for and on its behalf, and in respect of its property, service
of any and all legal process, summons, notices and documents that may be served
in any action or proceeding arising out of, or in connection with, this Guaranty
or any other Loan Document. Such service may be made by mailing (by registered
or certified mail, postage prepaid) or delivering a copy of such process to such
Guarantor in care of the Process Agent at the Process Agent's above address, and
such Guarantor hereby irrevocably authorizes and directs the Process Agent to
accept such service on its behalf. As an alternative method of service, each
Guarantor irrevocably consents to the service of any and all process in any such
action or proceeding by the mailing (by registered or certified mail, postage
prepaid) of copies of such process to the Process Agent or such Guarantor care
of the Borrowers at the Borrower's address specified in Section 11.8 (Notices,
Etc.) of the Credit Agreement or at such other addresses as the Borrowers may
specify pursuant to such Section 11.8. Each Guarantor agrees that a final
judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law.
(c) Nothing contained in this Section 21 (Submission to
Jurisdiction; Service of Process) shall affect the right of the Administrative
Agent or any other Guarantied Party to serve process in any other manner
permitted by law or commence legal proceedings or otherwise proceed against a
Guarantor in any other jurisdiction.
(d) If for the purposes of obtaining judgment in any court it
is necessary to convert a sum due hereunder in a Currency of Payment into
another currency, the parties hereto agree that the rate of exchange used shall
be that at which in accordance with normal banking procedures the Administrative
Agent could purchase such Currency of Payment with such other
13
NON-U.S. GUARANTY
SWIFT & COMPANY
currency at the spot rate of exchange quoted by the Administrative Agent at
11:00 a.m. (New York time) on the Business Day preceding that on which final
judgment is given, for delivery two Business Days thereafter.
SECTION 22 WAIVER OF JUDICIAL BOND
To the fullest extent permitted by applicable law, the
Guarantor waives the requirement to post any bond that otherwise may be required
of any Guarantied Party in connection with any judicial proceeding to enforce
such Guarantied Party's rights to payment hereunder, security interest in or
other rights to the Collateral or in connection with any other legal or
equitable action or proceeding arising out of, in connection with, or related to
this the Loan Documents to which it is a party.
SECTION 23 CERTAIN TERMS
The following rules of interpretation shall apply to this
Guaranty: (a) the terms "herein," "hereof," "hereto" and "hereunder" and similar
terms refer to this Guaranty as a whole and not to any particular Article,
Section, subsection or clause in this Guaranty, (b) unless otherwise indicated,
references herein to an Exhibit, Article, Section, subsection or clause refer to
the appropriate Exhibit to, or Article, Section, subsection or clause in this
Guaranty and (c) the term "including" means "including without limitation"
except when used in the computation of time periods.
SECTION 24 WAIVER OF JURY TRIAL
EACH OF THE ADMINISTRATIVE AGENT, THE OTHER GUARANTIED PARTIES
AND EACH GUARANTOR IRREVOCABLY WAIVES TRIAL BY JURY IN ANY ACTION OR PROCEEDING
WITH RESPECT TO THIS GUARANTY AND ANY OTHER LOAN DOCUMENT.
SECTION 25 NOTICES
Any notice or other communication herein required or permitted
shall be given as provided in Section 11.8 (Notices, Etc.) of the Credit
Agreement and, in the case of any Guarantor, to such Guarantor in care of either
Australian Borrower.
SECTION 26 SEVERABILITY
Wherever possible, each provision of this Guaranty shall be
interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Guaranty shall be prohibited by or invalid under
such law, such provision shall be ineffective to the extent of such prohibition
or invalidity without invalidating the remainder of such provision or the
remaining provisions of this Guaranty.
SECTION 27 ADDITIONAL GUARANTORS
Each of the Guarantors agrees that, if, pursuant to Section
7.11(b) (Additional Collateral and Guaranties) of the Credit Agreement, the
Australian Borrowers shall be required to cause any Subsidiary or Affiliate
thereof that is not a Guarantor to become a Guarantor hereunder, or if for any
reason an Australian Borrower desires any such Subsidiary or Affiliate to become
a Guarantor hereunder, such Subsidiary or Affiliate shall execute and deliver to
the
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NON-U.S. GUARANTY
SWIFT & COMPANY
Administrative Agent a Guaranty Supplement in substantially the form of Exhibit
A (Guaranty Supplement) attached hereto and shall thereafter for all purposes be
a party hereto and have the same rights, benefits and obligations as a Guarantor
party hereto on the Closing Date.
SECTION 28 COLLATERAL
Each Guarantor hereby acknowledges and agrees that its
obligations under this Guaranty are secured pursuant to the terms and provisions
of the Collateral Documents executed by it in favor of the Administrative Agent,
the Company (as assigned to the Administrative Agent hereunder) and the
Australian Collateral Trustee, for the benefit of the Secured Parties, and
covenants that it shall not grant any Lien with respect to its Property in
favor, or for the benefit, of any Person other than the Administrative Agent,
the Company (as assigned to the Administrative Agent hereunder) and the
Australian Collateral Trustee, for the benefit of the Secured Parties.
SECTION 29 COSTS AND EXPENSES
In accordance with the provisions of Section 11.3 (Costs and
Expenses) of the Credit Agreement, each Guarantor agrees to pay or reimburse the
Administrative Agent and each of the other Guarantied Parties upon demand for
all out-of-pocket costs and expenses, including reasonable attorneys' fees
(including allocated costs of internal counsel and costs of settlement),
incurred by the Administrative Agent and such other Guarantied Parties in
enforcing this Guaranty against such Guarantor or any security therefor or
exercising or enforcing any other right or remedy available in connection
herewith or therewith.
SECTION 30 WAIVER OF CONSEQUENTIAL DAMAGES
EACH GUARANTOR HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES,
TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW, ANY RIGHT IT MAY HAVE TO CLAIM OR
RECOVER ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGE IN ANY LEGAL
ACTION OR PROCEEDING IN RESPECT OF THIS GUARANTY OR ANY OTHER LOAN DOCUMENT.
SECTION 31 ENTIRE AGREEMENT
This Guaranty, taken together with all of the other Loan
Documents executed and delivered by the Guarantors, represents the entire
agreement and understanding of the parties hereto and supersedes all prior
understandings, written and oral, relating to the subject matter hereof.
This Guaranty is a specialty deed for Australian law purposes.
[SIGNATURE PAGES FOLLOW]
15
GUARANTY
SWIFT & COMPANY
IN WITNESS WHEREOF, this Guaranty has been duly executed by
the Guarantors as of the day and year first set forth above.
SWIFT & COMPANY,
as Assignor under Section 17(c) and Borrower
By: /s/ XXXX XXXXXX
-----------------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
Affiliate Guarantors:
S&C AUSTRALIA HOLDCO PTY. LTD.
AUSTRALIA MEAT HOLDINGS PTY. LIMITED
(F/K/A AUSTRALIA OPCO)
BURCHER PTY. LIMITED
By: /s/ XXXXX XXXXX
-----------------------------------------
Name: Xxxxx Xxxxx
Title: Attorney
KABUSHIKI KAISHA SAC JAPAN
By: /s/ XXXXXXX X. XXXXX
-----------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Attorney-in-Fact
SWIFT REFRIGERATED FOODS, S.A. DE C.V.
By: /s/ XXXXXXX X. XXXXX
-----------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Attorney-in-Fact
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 NON-U.S. GUARANTY OF SWIFT & COMPANY'S CREDIT AGREEMENT)
EXHIBIT A
TO
GUARANTY
FORM OF GUARANTY SUPPLEMENT
The undersigned hereby agrees to be bound as a Guarantor for
purposes of the Guaranty, dated as of September 19, 2002 (the "Guaranty"), among
certain Subsidiaries of Swift & Company, S&C Australia Holdco Pty. Ltd. and
Australia Meat Holdings Pty. Limited listed on the signature pages thereof and
acknowledged by Citicorp USA, Inc., as Administrative Agent, and the undersigned
hereby acknowledges receipt of a copy of the Guaranty. The undersigned hereby
represents and warrants that each of the representations and warranties
contained in Section 18 (Representations and Warranties; Covenants) of the
Guaranty applicable to it is true and correct on and as the date hereof as if
made on and as of such date. Capitalized terms used herein but not defined
herein are used with the meanings given them in the Guaranty.
IN WITNESS WHEREOF, the undersigned has caused this Guaranty
Supplement to be duly executed and delivered as of ___________, ____.
[NAME OF AFFILIATE GUARANTOR]
By:
--------------------------------------
Name:
Title:
ACKNOWLEDGED AND AGREED
as of the date first above written:
CITICORP USA, INC.
as Administrative Agent
By:
-------------------------------
Name:
Title:
