EXHIBIT 10.2
AMENDMENT NO. 4
TO
SWIFT & COMPANY'S CREDIT AGREEMENT
AMENDMENT NO. 4 (this "Amendment"), dated as of March 4, 2005, to
the Credit Agreement, dated as of September 19, 2002 (as amended to the date
hereof, the "Credit Agreement"), among Swift & Company, a Delaware corporation,
S&C Australia Holdco Pty. Ltd. (ACN: 000 000 000), x Xxx Xxxxx Xxxxx, Xxxxxxxxx
company, and Australia Meat Holdings Pty. Limited (XXX 000 000 000), x
Xxxxxxxxxx, Xxxxxxxxx company, as Borrowers, S&C Holdco 3, Inc., a Delaware
corporation ("Holdings"), the Lenders and Issuers from time to time party
thereto, Citicorp USA, Inc. as Administrative Agent, Australian Agent and
Collateral Agent for such Lenders and Issuers, JPMorgan Chase Bank, as
Syndication Agent for such Lenders and Issuers, Citisecurities Limited, as
Australian Collateral Trustee, 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 Agent
for such Lenders and Issuers. Capitalized terms used herein but not defined
herein are used as defined in the Credit Agreement.
WITNESSETH:
WHEREAS, Holdings, the Borrowers, the Lenders, the Issuers, the
Administrative Agent and the other Agents are party to the Credit Agreement; and
WHEREAS, Holdings, the Borrowers, the Administrative Agent and the
Lenders and Issuers consenting hereto, constituting the Requisite Lenders and
the Requisite Term Loan Lenders, have agreed, subject to certain limitations and
conditions set forth below, to make certain amendments to the Credit Agreement,
as more specifically set forth below;
NOW, THEREFORE, in consideration of the premises and the covenants
and obligations contained herein the parties hereto agree as follows:
SECTION 1. AMENDMENTS TO THE CREDIT AGREEMENT. The Credit Agreement is,
effective as of the Effective Date (as defined below) for the following
amendments and subject to the satisfaction (or due waiver) of the conditions set
forth in Section 3 (Conditions Precedent to the Effectiveness of the Amendments)
hereof, hereby amended as follows:
(a) Amendments to Article I (Definitions, Interpretation and
Accounting Terms).
(i) The following definitions are hereby inserted in Section
1.1 (Defined Terms) of the Credit Agreement in the appropriate place to preserve
the alphabetical order of the definitions in such section (and, if applicable,
the following definitions shall replace in their entirety existing definitions
for the corresponding terms in such section):
"Equity Investment Amount" means, at any time, an amount equal
to the sum, without duplication, of (a) the amount of cash proceeds (net
of brokers' and advisors' fees and other costs incurred in connection with
such transaction, if evidence of such costs is provided to the
Administrative Agent in form and substance reasonably satisfactory to it)
received by the Company or any of its Subsidiaries after the Closing Date
and at or prior to such time from any sale of any Stock or Stock
Equivalents of SFC, any Intermediary Holding Company or Holdings by
Acquisition Co., SFC or such Intermediary Holding Company to any Person
other than Holdings or any of its Subsidiaries and excluding (but only to
the extent and for as long as such director, member of management,
employee or individual independent contractor does not have
any Indebtedness incurred in connection with the purchase of such Stock or
Stock Equivalents outstanding and owing to any Loan Party) proceeds from
the issuance of Stock and Stock Equivalents in the ordinary course of
business to any director, member of management, employee or individual
independent contractor of Holdings or any of its Subsidiaries, (b) to the
extent not included in clause (a) above, the aggregate amount of cash
contributions to the capital of Holdings made after the Closing Date and
to the extent further contributed to the capital of, or used to purchase
from the Company common Stock of, the Company at or prior to the date of
determination and (c) the aggregate net cash proceeds received by Holdings
from the issuance of the Indebtedness described in clause (a) of the
definition of "Holdings Indebtedness" to the extent contributed in cash to
the capital of, or used to purchase from the Company common Stock of, the
Company at or prior to the date of determination.
"Excess Cask Flow" means, for the Company for any Cash Flow
Period, (a) Consolidated Adjusted EBITDA of the Company for such Cash Flow
Period plus (b) the excess, if any, of the Working Capital of the Company
at the beginning of such Cash Flow Period over the Working Capital of the
Company at the end of such Cash Flow Period minus (c) the sum of (without
duplication) (i) scheduled and mandatory cash principal payments on the
Loans during such Cash Flow Period and optional cash principal payments on
the Loans during such Cash Flow Period (but only, in the case of Revolving
Loans and Swing Loans, to the extent that any Revolving Credit Commitment
is permanently reduced by the amount of such payments), (ii) scheduled
cash principal payments made by the Company or any of its Subsidiaries
during such Cash Flow Period on other Indebtedness to the extent such
other Indebtedness and payments are not prohibited by this Agreement,
(iii) scheduled payments made by the Company or any of its Subsidiaries on
Capital Lease Obligations to the extent such Capital Lease Obligations and
payments are not prohibited by this Agreement, (iv) Capital Expenditures
(to the extent not financed by the incurrence of Indebtedness other than
the Obligations) made by the Company or any of its Subsidiaries during
such Cash Flow Period to the extent not prohibited by this Agreement, (v)
the excess, if any, of the Working Capital of the Company at the end of
such Cash Flow Period over the Working Capital of the Company at the
beginning of such Cash Flow Period, (vi) cash payments made during such
Cash Flow Period by the Company or any of its Subsidiaries to satisfy
income tax obligations of the Company and its Subsidiaries, (vii) any
Restricted Payment made pursuant to clause (c) of Section 8.5 (Restricted
Payments), or Holdings Indebtedness Cash Interest Restricted Payments, but
in each case only to the extent such payment was not included as an
expense in the determination of Consolidated Adjusted EBITDA, (viii)
Investments in Permitted Joint Ventures made during such Cash Flow Period,
to the extent such Investments are not prohibited hereunder, (ix) any
Garden City Insurance Claims received during such Cash Flow Period and (x)
Cash Interest Expense of the Company and its Subsidiaries during such Cash
Flow Period.
"Fixed Charges" means, with respect to any Person for any
period, the sum, determined on a Consolidated basis, of (a) the Annualized
Cash Interest Expense of such Person and its Subsidiaries for such period,
(b) the Annualized principal amount of Consolidated Financial Covenant
Debt of such Person and its Subsidiaries having a scheduled due date
during such period and (c) the amount of all cash dividends on Stock and
other Restricted Payments (other than the September 2004 Dividends, the
Holdings 2005 Dividend and cash dividends and other Restricted Payments
permitted under clause (a), (c)(i), (ii) or (iii) of Section 8.5
(Restricted Payments)) paid by such Person and its Subsidiaries in respect
of such period to Persons other than such Person and its Subsidiaries.
"Holdings 2005 Dividend" means a cash dividend paid by the
Company to Holdings prior to August 31,2005 in an aggregate amount up to
the lesser of $180,000,000 and
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the amount of proceeds of the Indebtedness described in clause (a) of the
definition of "Holdings Indebtedness" contributed to the capital of, or
used to purchase from the Company common Stock of, the Company.
"Holdings Indebtedness" means (a) Indebtedness (excluding
Guaranty Obligations) owing by Holdings (i) all or a part of the gross
proceeds of which are contributed substantially contemporaneously with
such issuance to the capital of, or used to purchase from the Company the
common Stock of, the Company and used to make the Holdings 2005 Dividend,
(ii) having a stated rate of interest not to exceed the greater of (A) the
Eurodollar Rate (or a substantially identical rate) plus 10.0% and (B)
12.5%, (iii) providing for an option for the payment in kind of interest
on terms and conditions satisfactory to the Administrative Agent, (iv)
having a stated maturity no earlier than the fifth anniversary of the
issuance thereof, (v) that is not guaranteed by, or secured by a Lien on
any asset or property of, the Company or any Subsidiary of the Company,
(vi) that is not secured by a Lien on any asset or property of Holdings,
and (vii) promptly after the issuance of which, a copy of all agreements,
certificates and other documents executed in connection with the issuance
thereof certified as being complete and correct by a Responsible Officer
of the Company are delivered to the Administrative Agent, and (b) Guaranty
Obligations incurred by Holdings prior to August 31, 2005 in respect of
Indebtedness owing by an Affiliate of Holdings (other than a Loan Party or
a Subsidiary of a Loan Party) having substantially the terms described in
clause (a) above (other than clause (i) thereof); provided that the
aggregate principal amount of the Indebtedness described in clause (a) and
Indebtedness supported by a Guaranty Obligation described in clause (b)
above shall together not exceed $180,000,000 (in addition to any increase
to such principal amount resulting from the payment in kind of interest
under such Indebtedness).
"Holdings Indebtedness Cash Interest Restricted Payments"
means Restricted Payments with respect to the Stock of the Company made to
Holdings for the purpose of funding the cash payments of interest on
Indebtedness described in clause (a), or Indebtedness supported by a
Guaranty Obligation described in clause (b), of the definition of
"Holdings Indebtedness."
"Net Cash Proceeds" means proceeds received by Holdings, the
Company, any Subsidiary of the Company or any Joint Venture after the
Closing Date in cash or Cash Equivalents from any (a) Asset Sale (other
than an Asset Sale permitted under Section 8.4 (a), (b), (c), (d), (e),
(f), (g) or (i) (Sale of Assets)), Property Loss Event or Purchase Price
Adjustment, in each case net of, to the extent applicable, (i) in the case
of a Property Loss Event or Asset Sale, the reasonable cash costs of sale,
assignment or other disposition, (ii) taxes paid or reasonably estimated
to be payable as a result thereof and (iii) in the case of a Property Loss
Event or Asset Sale, any amount required to be paid or prepaid on
Indebtedness (other than the Obligations) secured by the assets subject to
such Asset Sale or Property Loss Event, provided, however, that evidence
of each of clauses (i), (ii) and (iii) above is provided to the
Administrative Agent in form and substance satisfactory to it, or (b) any
Debt Issuance (other than Indebtedness permitted under clauses (a) through
(m), (n)(ii) or (p) of Section 8.1 (Indebtedness)), net of brokers' and
advisors' fees and other costs incurred in connection with such Debt
Issuance, provided, however, that, in case of clause (b) above, evidence
of such costs is provided to the Administrative Agent in form and
substance satisfactory to it; and provided, farther, that, (x) "Net Cash
Proceeds" shall not include proceeds of the Garden City Insurance Claim
and (y) in the case of clauses (a) and (b) above, proceeds received by a
Permitted Joint Venture shall be included in "Net Cash Proceeds" only (A)
to the extent of the Loan Parties' direct or indirect aggregate interest
therein and (B) in the case of a Joint Venture for which distribution of
such proceeds to the Loan Parties is prohibited or restricted by
Requirements of Law or Contractual Obligations with third parties
(including obligations set forth in the
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Constituent Documents of such Permitted Joint Venture), to the extent such
proceeds are further transferred to Holdings, the Company or any
Subsidiary of the Company.
(b) Amendments to Article II (The Facilities).
(i) Clause (a)(ii) of Section 2.9 (Mandatory Prepayments) of
the Credit Agreement is hereby amended and restated to read in its entirety as
follows:
(ii) any Net Cash Proceeds arising from Asset Sales or Property Loss
Events that yield, individually or in the aggregate in any Fiscal Year,
gross proceeds not greater than $10,000,000 (provided, however, that Net
Cash Proceeds of Asset Sales in connection with any sale and leaseback
shall not be included in the Net Cash Proceeds subject to this clause (ii)
regardless of the amount thereof) shall only be required to be applied as
provided in clauses (d)(ii) through (v) below.
(ii) Clause (a) of Section 2.9 (Mandatory Prepayments) of the
Credit Agreement is hereby further amended by adding, at the end thereof, the
following sentence:
Notwithstanding the foregoing, no prepayment shall be required pursuant to
this clause (a) because of the receipt by Holdings, the Company, any
Subsidiary of the Company or any Permitted Joint Venture of any Net Cash
Proceeds arising from any Asset Sale or Property Loss Event if such Net
Cash Proceeds are received at any time when the Aggregate Available
Revolving Credit (after giving effect to such Asset Sale or Property Loss
Event) equals or exceeds $150,000,000 except to the extent that, in the
absence of such prepayment, Holdings, the Company or any Subsidiary of the
Company would be required to make a prepayment under the Senior Notes
Indenture or the Subordinated Notes Indenture or an offer to purchase any
Senior Notes or any Subordinated Notes (in which case such prepayment
shall be required to the extent otherwise provided in this clause (a)).
(c) Amendments to Article IV(Representations and Warranties).
(i) Section 4.3(a) (Ownership of Company; Subsidiaries) of the
Credit Agreement is hereby amended by inserting "As of the Closing Date," at the
beginning of the first sentence thereof.
(d) Amendments to Article VII (Affirmative Covenants).
(i) Section 7.11(e) (Additional Collateral and Guaranties) of
the Credit Agreement is hereby amended and restated to read in its entirety as
follows:
(e) (i) in respect of each Person entering into Guaranty
Obligations of the Indebtedness of any Loan Party that is a Domestic
Person (other than, in the case of each such Person entering into Guaranty
Obligations that is not a Loan Party or a Subsidiary of any Loan Party,
Holdings Indebtedness), to the extent not otherwise provided hereunder,
provide to the Administrative Agent executed and delivered by such Person
supplements to the Domestic Guaranty and joinder to the Pledge and
Security Agreement and other amendments, supplements and joinders to the
Collateral Documents executed by the appropriate parties to ensure that
such Person guaranties the Secured Obligations and that the Administrative
Agent (or, for assets located in Australia, the Australian Collateral
Trustee) obtains, for the benefit of the Secured Parties, a security
interest in all of the assets of such Person (unless, for assets not
located in the United States and Australia, the Administrative Agent
otherwise consents) and in all Stock and
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Stock Equivalents of such Person and (ii) in respect of each Person
entering into Guaranty Obligations of the Indebtedness of any Loan Party
that is not a Domestic Person, to the extent not otherwise provided
hereunder, provide to the Administrative Agent executed and delivered by
such Person supplements to the Non-U.S. Guaranty and other amendments,
supplements and joinders to the applicable Collateral Documents or new
Collateral Documents executed by the appropriate parties to ensure that
such Person guaranties the Secured Obligations of each Loan Party that is
a Non-U.S. Person and that the Administrative Agent (or, for assets
located in Australia, the Australian Collateral Trustee) obtains, for the
benefit of the Secured Parties, a security interest in all of the assets
of such Person (unless, for assets not located in the United States and
Australia, the Administrative Agent otherwise consents) and in all Stock
and Stock Equivalents of such Person;
(ii) Section 7.13(b) (Control Accounts; Approved Deposit
Accounts) of the Credit Agreement is hereby amended to replace the "and" prior
to clause (y) thereof with a comma and adding a new clause (z) at the end
thereof to read as follows:
"and (z) maintain, prior to August 31, 2005, proceeds of the
Indebtedness described in clause (a) of the definition of "Holdings
Indebtedness" contributed to the capital of, or used to purchase from the
Company common Stock of, the Company (in an amount not to exceed
$180,000,000) in the Deposit Account of any Loan Party maintained with a
Lender or an Affiliate of a Lender and that is not an Approved Deposit
Account for the sole purpose of making the Holdings 2005 Dividend."
(e) Amendments to Article VIII (Negative Covenants).
(i) Section 8.1(c) (Indebtedness) of the Credit Agreement is
hereby amended and restated to read in its entirety as follows:
(c) Guaranty Obligations incurred by Holdings, any
Borrower or any Subsidiary Guarantor in respect of Indebtedness of any
Borrower or any Subsidiary Guarantor that is permitted by this Section 8.1
(other than pursuant to clause (j), (l) or (p) below) and for which, if
required, appropriate Guaranty Obligations have been provided pursuant to
Section 7.11 (Additional Collateral and Guaranties); provided, however,
that, in respect of Guaranty Obligations of Indebtedness permitted
pursuant to clause (m) below, such Guaranty Obligation shall be permitted
only if it is not reflected on the balance sheet and other Financial
Statements of the Company or any of its Subsidiaries other than as a
contingent obligation referred to in a footnote to such Financial
Statements;
(ii) Section 8.1 (Indebtedness) of the Credit Agreement is
hereby amended by deleting the "and" at the end of clause (n) thereof, replacing
the period at the end of clause (o) thereof with "; and" and adding a new clause
(p) at the end thereof to read in its entirety as follows:
(p) Holdings Indebtedness.
(iii) Clause (k) of Section 8.4 (Sale of Assets) of the Credit
Agreement is hereby amended and restated to read in its entirety as follows:
(k) as long as no Default or Event of Default is
continuing or would result therefrom, any other Asset Sale for Fair Market
Value, not less than 75% of the consideration for which shall be payable
in cash or Cash Equivalents upon such sale; provided, however, that with
respect to any such Asset Sale pursuant to this clause (k), (i) the Dollar
Equivalent of the
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aggregate consideration received during any Fiscal Year for all such Asset
Sales shall not exceed $95,000,000 and (ii) all Net Cash Proceeds of such
Asset Sale are applied to the payment of the Obligations as set forth in,
and to the extent required by, Section 2.9 (Mandatory Prepayments).
(iv) Section 8.5(c) (Restricted Payments) of the Credit
Agreement is hereby amended by deleting the "and" at the end of clause (iv)
thereof and inserting "and" at the end of clause (v) thereof.
SECTION 2. CONDITIONS PRECEDENT TO THE EFFECTIVENESS OF THE AMENDMENTS.
Each amendment set forth herein shall become effective only when the conditions
precedent applicable to such amendment shall have been satisfied (the "Effective
Date") or duly waived by the Administrative Agent:
(a) Certain Documents. The Administrative Agent shall have received
each of the following, each dated on or before the Effective Date, in form and
substance satisfactory to the Administrative Agent:
(i) this Amendment, duly executed by Holdings, each Borrower
and each other Guarantor;
(ii) Acknowledgments and Consents in the form attached hereto
as Exhibit A (Form of Acknowledgement and Consents) duly executed by Lenders
constituting the Requisite Lenders; and
(iii) such additional documentation as the Administrative
Agent may reasonably require;
(b) Corporate and Other Proceedings. All corporate and other
proceedings, and all documents, instruments and other legal matters in
connection with the transactions contemplated by this Amendment shall be
satisfactory in all respects to the Administrative Agent;
(c) Representations and Warranties. Each of the representations and
warranties contained herein, in Article IV (Representations and Warranties) of
or elsewhere in the Credit Agreement, any other Loan Document or in any
certificate, document or financial or other statement furnished at any time
under or in connection therewith are true and correct in all material respects
on and as of the date hereof and the Effective Date, in each case with the same
effect as though made on and as of such date, except to the extent such
representations and warranties specifically relate to an earlier date, in which
case such representations and warranties shall be true and correct in all
material respects as of such earlier date; provided, however, that references
therein to the "Credit Agreement" shall be deemed to refer to the Credit
Agreement as amended by the amendments set forth herein effective on the
Effective Date;
(d) No Default or Event of Default. After giving effect to the
amendments effective on the Effective Date, no Default or Event of Default
(except for those that may have been duly waived) shall have occurred and be
continuing, either on the date hereof or on the Effective Date;
(e) No Litigation. No litigation shall have been commenced by or
against any Loan Party or any of its Subsidiaries, either on the date hereof or
the Effective Date, seeking to restraint or enjoin (whether temporarily,
preliminarily or permanently) the performance of any action required or
contemplated by this Amendment or any other Loan Document, as amended hereby on
the Effective Date; and
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(f) Fees, Costs and Expenses Paid. The Borrowers shall have paid all
Obligations due, after giving effect to the amendments effective on the
Effective Date, on or before the Effective Date including, without limitation,
all fees and all reasonable out-of-pocket costs and expenses of the
Administrative Agent in connection with the preparation, reproduction, execution
and delivery of this Amendment and all other Loan Documents entered into in
connection herewith (including, without limitation, the reasonable fees,
expenses and disbursements of the Administrative Agent's counsel, Weil, Gotshal
& Xxxxxx, LLP, with respect thereto and all other Loan Documents) and all other
fees, costs and expenses due and owing under any Loan Document on or before the
Effective Date, after giving effect to the amendments, consents and waivers
effective on or before the Effective Date.
SECTION 3. REPRESENTATIONS AND WARRANTIES. On and as of the date hereof
and as of the Effective Date, in each case after giving effect to the
amendments, consents and waivers set forth herein effective on or before the
Effective Date, each of Holdings and the Company (and, insofar as it relates to
Australian Holdings or any of its Subsidiaries, each Australian Borrower) hereby
represents and warrants to the Administrative Agent and each Lender as follows:
(a) this Amendment has been duly authorized, executed and delivered
by each Borrower and each Guarantor and constitutes a legal, valid and binding
obligation of each Borrower and each Guarantor, enforceable against each
Borrower and each Guarantor in accordance with its terms, and the Credit
Agreement, as amended by this Amendment, constitutes the legal, valid and
binding obligation of Holdings and each Borrower, enforceable against each of
them in accordance with its terms, in each case except as such enforceability
may be limited by general equitable principles (whether enforcement is sought by
proceedings in equity or at law) and by applicable bankruptcy, insolvency,
moratorium and similar laws affecting the enforcement of creditors' rights
generally.
(b) each representation and warranty contained in Article IV
(Representations and Warranties) of, or elsewhere in, the Credit Agreement, any
other Loan Document or in any certificate, document or financial or other
statement furnished at any time under or in connection therewith are true and
correct in all material respects on and as of the date hereof and the Effective
Date, in each case with the same effect as though made on and as of such date,
except to the extent such representations and warranties specifically relate to
an earlier date, in which case such representations and warranties shall be true
and correct in all material respects as of such earlier date; provided, however,
that references therein to the "Credit Agreement" shall be deemed to refer to
the Credit Agreement as amended by the amendments set forth herein effective on
or before the Effective Date and after giving effect to the consents and waivers
set forth herein;
(c) no Default or Event of Default (except for those that may have
been duly waived) has occurred and is continuing, either on the date hereof or
on the Effective Date; and
(d) no litigation has been commenced by or against any Loan Party or
any of its Subsidiaries or any Permitted Joint Venture, either on the date
hereof or the Effective Date, seeking to restraint or enjoin (whether
temporarily, preliminarily or permanently) the performance of any action
required or contemplated by this Amendment or any other Loan Document as amended
hereby (if applicable) on the Effective Date.
SECTION 4. EFFECT ON THE LOAN DOCUMENTS
(a) As of the Effective Date, each reference in the Credit Agreement
to "this Agreement," "hereunder," "hereof," "herein," or words of like import,
and each reference in the other Loan Documents to the Credit Agreement
(including, without limitation, by means of words like "thereunder", "thereof"
and words of like import), shall mean and be a reference to the Credit
7
Agreement as amended hereby on or before the Effective Date, and this Amendment
and the Credit Agreement shall be read together and construed as a single
instrument.
(b) Except as expressly amended hereby or specifically waived above,
all of the terms and provisions of the Credit Agreement and all other Loan
Documents are and shall remain in full force and effect and are hereby ratified
and confirmed. This Amendment is a Loan Document.
(c) The execution, delivery and effectiveness of this Amendment
shall not, except as expressly provided herein, operate as a waiver of any
right, power or remedy of the Lenders, Issuers, Arranger or the Administrative
Agent under any of the Loan Documents, nor constitute a waiver or amendment of
any other provision of any of the Loan Documents or for any purpose except as
expressly set forth herein.
SECTION 5. CONSENT OF GUARANTORS. Each Guarantor hereby consents to this
Amendment and agrees that the terms hereof shall not affect in any way its
obligations and liabilities under the Loan Documents (as amended and otherwise
expressly modified hereby), all of which obligations and liabilities shall
remain in full force and effect and each of which is hereby reaffirmed (as
amended and otherwise expressly modified hereby).
SECTION 6. EXECUTION IN COUNTERPARTS. This Amendment may be executed in
any number of counterparts and by different parties in separate counterparts,
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 separate 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, electronic mail or
through the Internet shall be effective as delivery of a manually executed
counterpart of this Amendment.
SECTION 7. GOVERNING LAW. This Amendment shall be governed by and
construed in accordance with the law of the State of New York.
SECTION 8. SECTION TITLES. The section titles contained in this Amendment
are and shall be without substantive meaning or content of any kind whatsoever
and are not a part of the agreement between the parties hereto, except when used
to reference a section.
SECTION 9. NOTICES. All communications and notices hereunder shall be
given as provided in the Credit Agreement or, as the case may be, the applicable
Guaranty.
SECTION 10. SEVERABILITY. The fact that any term or provision of this
Agreement is held invalid, illegal or unenforceable as to any Person in any
situation in any jurisdiction shall not affect the validity, enforceability or
legality of the remaining terms or provisions hereof or the validity,
enforceability or legality of such offending term or provision in any other
situation or jurisdiction or as applied to any other Person.
SECTION 11. SUCCESSORS. The terms of this Amendment shall be binding upon,
and shall inure to the benefit of, the parties hereto and their respective
successors and assigns.
SECTION 12. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO IRREVOCABLY
WAIVES TRIAL BY JURY IN ANY ACTION OR PROCEEDING WITH RESPECT TO THIS AMENDMENT
OR ANY OTHER LOAN DOCUMENT.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed by their respective officers and general partners thereunto duly
authorized, as of the date first written above.
SWIFT & COMPANY,
as Borrower and Guarantor
By: /s/ Xxxxx X. Xxxxxx
-------------------------
Name: Xxxxx X. Xxxxxx
Title: Executive Vice President and CFO
S&C AUSTRALIA HOLDCO PTY. LTD.,
as Borrower and Guarantor
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Secretary
AUSTRALIA MEAT HOLDINGS PTY. LIMITED,
as Borrower and Guarantor
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Secretary
S&C HOLDCO 3, INC.,
as Holdings and Guarantor
By: /s/ Xxxxx X. Xxxxxx
-------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President and CFO
[SIGNATURE PAGE TO AMENDMENT NO. 4 TO THE CREDIT AGREEMENT OF SWIFT & COMPANY]
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
S&C RESALE COMPANY,
each as Guarantor
By: /s/ Xxxxx X. Xxxxxx
-------------------------
Name: Xxxxx X. Xxxxxx
Title: Executive Vice President and CFO
XXXXXXX PTY. LIMITED,
as Guarantor
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Secretary
KABUSHIKI KAISHA SAC JAPAN,
as Guarantor
By: /s/ Xxxxx X. Xxxxxx
-------------------------
Name: Xxxxx X. Xxxxxx
Title: Executive Vice President and CFO
SWIFT REFRIGERATED FOODS, S.A. DE C.V.,
as Guarantor
By: /s/ Xxxxx X. Xxxxxx
-------------------------
Name: Xxxxx X. Xxxxxx
Title: Executive Vice President and CFO
[SIGNATURE PAGE TO AMENDMENT NO. 4 TO THE CREDIT AGREEMENT OF SWIFT & COMPANY]
XXXXXXXX XXX, INC.,
as Administrative Agent
By: /s/ Sebastien Delasnerie
-------------------------
Name: Sebastien Delasnerie
Title: Vice President
CITICORP USA, INC.,
as Lender
By: /s/ Sebastien Delasnerie
-------------------------
Name: Sebastien Delasnerie
Title: Vice President
[SIGNATURE PAGE TO AMENDMENT NO. 4 TO THE CREDIT AGREEMENT OF SWIFT & COMPANY]
