EXHIBIT 4.9
SWIFT & COMPANY
AS OBLIGOR
AND
SWIFT & COMPANY INTERNATIONAL SALES CORPORATION,
AS GUARANTOR
AND
THE BANK OF NEW YORK TRUST COMPANY OF FLORIDA, N.A.
AS TRUSTEE
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SECOND SUPPLEMENTAL INDENTURE
DATED AS OF JANUARY 30, 2003
TO
INDENTURE
DATED AS OF SEPTEMBER 19, 2002
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10 1/8% SENIOR NOTES DUE 2009
SECOND SUPPLEMENTAL INDENTURE, dated as of January 30, 2003, by and
among Swift & Company, a Delaware corporation (the "Company"), Swift & Company
International Sales Corporation, a Colorado corporation and a wholly-owned
subsidiary of the Company (the "Amended Subsidiary Guarantor"), and The Bank of
New York Trust Company of Florida, N.A., as trustee (the "Trustee").
WHEREAS, the Company and certain guarantors have heretofore executed
and delivered to the Trustee an Indenture, dated as of September 19, 2002, as
amended by the First Supplemental Indenture, dated October 14, 2002 (together,
the "Indenture"), providing for the issuance of 10?% Senior Notes due 2009 (the
"Notes");
WHEREAS, on January 10, 2003, the Amended Subsidiary Guarantor filed an
amendment to its articles of incorporation with the Secretary of State of the
State of Colorado to change its corporate name from Xxxxxxx International Sales
Corporation to Swift & Company International Sales Corporation;
WHEREAS, the Company and the Amended Subsidiary Guarantor desire to
enter into this Second Supplemental Indenture to reaffirm the Amended Subsidiary
Guarantor's obligations under the Indenture;
WHEREAS, the execution and delivery of this Second Supplemental
Indenture has been authorized by the Boards of Directors of the Company and the
Amended Subsidiary Guarantor; and
WHEREAS, all conditions and requirements necessary to make this Second
Supplemental Indenture a valid, legal, binding and enforceable instrument in
accordance with its terms have been performed and fulfilled by the parties
hereto and the execution and delivery thereof have been in all respects duly
authorized by the parties hereto.
NOW, THEREFORE, in consideration of the above premises, each party
hereby agrees, for the benefit of the others and for the equal and ratable
benefit of the holders of the Notes, as follows:
ARTICLE I
ASSUMPTION OF OBLIGATIONS AS GUARANTOR
SECTION 1.1 ASSUMPTION. The Amended Subsidiary Guarantor hereby
expressly and unconditionally assumes each and every covenant, agreement and
undertaking of a Guarantor in the Indenture as of the date of this Second
Supplemental Indenture, and also hereby expressly and unconditionally assumes
each and every covenant, agreement and undertaking of a Guarantor in each Note
outstanding on the date of this Second Supplemental Indenture.
ARTICLE II
MISCELLANEOUS PROVISIONS
SECTION 2.1 DEFINED TERMS. For all purposes of this Second Supplemental
Indenture, except as otherwise defined or unless the context otherwise requires,
terms used in capitalized form in this Second Supplemental Indenture and defined
in the Indenture have the meanings specified in the Indenture.
SECTION 2.2 INDENTURE. Except as amended hereby, the Indenture and the
Notes are in all respects ratified and confirmed and all the terms shall remain
in full force and effect.
SECTION 2.3 GOVERNING LAW. THIS SECOND SUPPLEMENTAL INDENTURE SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS.
SECTION 2.4 SUCCESSORS. All agreements of the Company and the Amended
Subsidiary Guarantor in this Second Supplemental Indenture and the Notes shall
bind their successors. All agreements of the Trustee in this Second Supplemental
Indenture shall bind its successors.
SECTION 2.5 DUPLICATE ORIGINALS. All parties may sign any number of
copies of this Second Supplemental Indenture. Each signed copy shall be an
original, but all of them together shall represent the same agreement.
SECTION 2.6 SEVERABILITY. In case any one or more of the provisions in
this Second Supplemental Indenture or in the Notes shall be held invalid,
illegal or unenforceable, in any respect for any reason, the validity, legality
and enforceability of any such provision in every other respect and of the
remaining provisions shall not in any way be affected or impaired thereby, it
being intended that all of the provisions hereof shall be enforceable to the
full extent permitted by law.
SECTION 2.7 TRUSTEE DISCLAIMER. The Trustee accepts the amendment of
the Indenture effected by this Second Supplemental Indenture, but on the terms
and conditions set forth in the Indenture, including the terms and provisions
defining and limiting the liabilities and responsibilities of the Trustee, and
without limiting the generality of the foregoing, the Trustee shall not be
responsible in any manner whatsoever for or with respect to any of the recitals
or statements contained herein, all of which recitals or statements are made
solely by the Company and the Amended Subsidiary Guarantor, or for or with
respect to (i) the validity or sufficiency of this Second Supplemental Indenture
or any of the terms or provisions hereof, (ii) the proper authorization hereof
by the Company and the Amended Subsidiary Guarantor by corporate action or
otherwise, (iii) the due execution hereof by the Company and the Amended
Subsidiary Guarantor or (iv) the consequences (direct or indirect and whether
deliberate or inadvertent) of any amendment herein provided for, and the Trustee
makes no representation with respect to any such matters.
SECTION 2.8 EFFECTIVENESS. This Second Supplemental Indenture shall
become effective, once executed, upon receipt by the Trustee of a certificate of
the appropriate officers of
the Company and an Opinion of Counsel (as defined in the Indenture), each of
which shall be dated no earlier than the date hereof.
[The Remainder of This Page is Intentionally Left Blank]
IN WITNESS WHEREOF, the parties hereto have caused this Second
Supplemental Indenture to be duly executed as of the day and year written above.
SWIFT & COMPANY,
as Obligor
By: /s/ XXXXX XXXXXX
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Name: Xxxxx Xxxxxx
Title: Vice President and Chief Financial
Officer
SWIFT & COMPANY INTERNATIONAL SALES
CORPORATION,
as Guarantor
By: /s/ XXXXX XXXXXX
--------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President and Chief Financial
Officer
THE BANK OF NEW YORK TRUST
COMPANY OF FLORIDA, N.A.,
as Trustee
By: /s/ XXX XXXXXXXX
--------------------------------------
Name: Xxx Xxxxxxxx
Title: Vice President
