EXHIBIT 10.7
AVIATION PERSONNEL USE AND COST SHARING AGREEMENT
Agreement, dated September 19, 2002, by and among CONAGRA FOODS, INC.,
a Delaware corporation ("ConAgra"), XXXXXXX INTERNATIONAL SALES CORPORATION, a
Colorado corporation ("Xxxxxxx"), and each of the other companies listed on the
signature pages hereto (the "Companies").
RECITALS:
This Agreement is made with reference to the following facts and
circumstances:
(a) Swift Beef Company ("Swift") is the assignee from ConAgra of
the tenant's interest in land in Greeley, Weld County,
Colorado leased from Greeley-Weld County Airport Authority
("Authority") pursuant to a Greeley-Weld County Airport Ground
Lease Agreement for Land Space # 19 & 65 dated August 2, 2000,
as amended by an Amendment No. 1 dated October 27, 2000 and an
Amendment No. 2 dated December 4, 2001 (the "Ground Lease"),
as more particularly described therein (the "Land").
(b) Swift is the transferee from ConAgra of the buildings,
fixtures and other improvements affixed to the Land (the
"Hangar"). The Land and the Hangar are collectively referred
to as the "Premises".
(c) ConAgra and Xxxxxxx each own an aircraft that is based at the
Hangar, described as:
ConAgra Learjet: Learjet 35A S/N 459 N829CA ("ConAgra Plane")
Xxxxxxx Learjet: Learjet 35A S/N 590 N827CA ("Xxxxxxx Plane")
collectively the "Planes".
(d) ConAgra currently employs two (2) aircraft maintenance
employees (the "Mechanics"), five (5) pilots (the "Pilots"),
and one (1) scheduler (the "Scheduler") identified on Exhibit
1, who maintained, piloted and scheduled, respectively, the
Planes before the Xxxxxxx Plane was conveyed by ConAgra to
Xxxxxxx. The Mechanics, Pilots and Scheduler are sometimes
collectively referred to as the "Personnel".
(e) Xxxxxxx may lease or otherwise permit the use of the Xxxxxxx
Plane by one or more of the Companies to transport property,
employees, officers, directors, agents, guests and/or invitees
of such Companies and their respective affiliates.
(f) The parties desire to set forth herein certain agreements with
respect to the joint use of the Personnel by ConAgra and
Xxxxxxx.
AGREEMENT:
In consideration of the foregoing recitals which are incorporated with
and are made a part of this Agreement, and in further consideration of the
mutual covenants and agreements hereinafter contained, the parties agree,
subject to the terms and conditions hereinafter set forth, as follows:
1. Personnel's Services and Cost Sharing. ConAgra will initially supply
the Personnel identified on Exhibit 1. As the employer, ConAgra will, with
respect to the Personnel: (i) maintain all necessary personnel and payroll
records; (ii) compute wages and withhold applicable federal, state and local
taxes and federal Social Security payments; (iii) remit employee withholdings to
the proper governmental authorities and make employer contributions for federal
FICA and federal and state unemployment insurance payments; and (iv) pay net
wages and salaries and provide fringe benefits directly to the Personnel. This
arrangement shall in no way affect the right of ConAgra, in its sole discretion
as employer, to assign, reassign and/or terminate any of such Personnel;
provided, however, that any assignment or reassignment of any of such Personnel
shall require the prior consent of Xxxxxxx (not to be unreasonably withheld).
The salaries and wages to be paid and the fringe benefits to be
provided to the Personnel initially shall be those currently provided by ConAgra
to the Personnel. ConAgra may change the compensation and benefits of the
Personnel at any time without the consent of Xxxxxxx and the Companies.
Xxxxxxx and each of the Companies acknowledge that the Personnel shall
remain employees-at-will of ConAgra. ConAgra shall have no responsibility for
providing any Personnel other than those set forth on Exhibit 1 hereto, and in
the event either or both of such Personnel's employment is terminated, ConAgra
shall have no obligation to replace such Personnel. ConAgra does not guarantee
any of the Personnel continued employment.
Xxxxxxx shall reimburse ConAgra upon invoice from ConAgra, one-half
(1/2) of all compensation and benefits of the Personnel and one-half (1/2) of
all other costs and expenses of ConAgra relating to such Personnel for so long
as the Personnel continue to maintain the Planes as provided herein.
2. Coordinating and Scheduling of Personnel. ConAgra will coordinate
and schedule the Personnel so that Xxxxxxx and ConAgra both have reasonable
access to the Personnel, and shall use reasonable efforts to accommodate
Xxxxxxx'x needs and to avoid conflicts in use of the Personnel. Notwithstanding
the foregoing, (a) ConAgra shall have final authority over the coordination and
scheduling of the Personnel and (b) ConAgra shall have priority with respect to
the use of the Mechanics and two (2) of the Pilots; and Xxxxxxx shall have
priority with respect to the use of two (2) of the Pilots. The parties may, from
time to time, adopt operational guidelines to assist them in the administration,
management, and coordination of their respective aircraft maintenance
requirements and activities. Any such operational guidelines shall be effective
upon signing by the parties hereto.
3. Control of Personnel. During the periods of time that each of the
Personnel is performing services on or in connection with the Xxxxxxx Plane,
such Personnel performing such services shall be considered under the direction
and control of Xxxxxxx, and during such periods
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of time the Personnel are performing services on the Xxxxxxx Plane shall not be
under ConAgra's direction and control, and ConAgra shall not be responsible in
any manner for the actions or omissions of such Personnel. In no event shall
ConAgra be responsible for the satisfactory performance and/or quality of the
services provided by the Personnel with respect to the Xxxxxxx Plane. The
parties acknowledge, understand and agree that during the periods of time the
Personnel are performing services on or in connection with the Xxxxxxx Plane,
Xxxxxxx shall have sole responsibility for the actions and omissions of such
Personnel.
4. Operational Control of Planes. Notwithstanding that the Pilots are
provided by ConAgra, while operating the Xxxxxxx Plane for Xxxxxxx, the Pilots
and other members, if any, of the flight crew shall be deemed solely under the
direction and control of Xxxxxxx, and Xxxxxxx shall be considered responsible
for the operational control of the Xxxxxxx Plane. As such, ConAgra and Xxxxxxx
each acknowledges and agrees that such party (as owner and operator of such
party's Plane, herein referred to as the "Owner") is solely responsible for the
operational control of such Owner's Plane under Part 91 of the FARS, and such
Owner is solely responsible for the possession, command and control of such
Owner's Plane in accordance with the applicable provisions of the Internal
Revenue Code of 1986, as amended, and the regulations and rulings promulgated
thereunder.
5. Responsibility for Maintenance of Planes. Subject to sharing the
costs of the Personnel as specified in Section 2 above, Xxxxxxx and ConAgra each
shall be solely responsible for the maintenance, preventive maintenance and
required or otherwise necessary inspections on such party's Plane. Xxxxxxx and
ConAgra each shall be responsible for assuring that all operations, maintenance
and recordkeeping of such party's Plane comply with applicable local, state and
such party's federal regulations, including Part 91 of the FARs. In accordance
therewith, Xxxxxxx and ConAgra each shall be responsible for the purchase of all
parts, supplies, and components required for or in connection with maintenance
of its Plane, and shall make arrangements directly with the Mechanics and
suppliers for authorizations and coordination of the purchase of parts and
components to be used by the Mechanics for maintenance of such party's Plane,
and payments by such party for same or charges by the Mechanics to such party's
account while the Mechanics are performing such services. In addition, Xxxxxxx
and ConAgra each shall obtain and maintain its own public liability and property
damage insurance in the amounts and upon such terms and conditions specified in
the Hangar License Agreement between ConAgra and Swift Beef Company, dated
September 19, 2002. In addition to such insurance, Xxxxxxx and ConAgra each
shall also obtain and maintain the following aviation insurance at its own
expense:
(a) Aircraft Liability and Property Damage Insurance. Public
liability insurance, including bodily injury and property
damage (including, without limitation, passenger legal
liability) in an amount not less than $50,000,000 for each
single occurrence and workmen's compensation insurance
all-states coverage for its personnel. In addition, ConAgra
agrees to name Xxxxxxx as an alternate employer under
ConAgra's workers compensation insurance covering the
Personnel.
(b) Insurance Against Loss or Damage to the Aircraft. All-risk
ground and flight aircraft hull insurance covering such
party's Plane in the full replacement value of such plane,
including foreign object damage, fire and explosion coverage,
and lightning and electrical damage, and, to the extent such
insurance is available at reasonable
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cost, war risk, hijacking (air piracy), governmental
confiscation and expropriation insurance.
(c) Release and Waiver of Subrogation. The parties hereby release
each other and their respective officers, employees, and
agents from all claims for damage to the Planes,
notwithstanding that any such loss or damage may be due to or
result from the negligence, gross negligence or willful
misconduct of any of the Personnel.
(d) Terms Applicable to All Insurance Policies. All insurance
policies maintained by Xxxxxxx (i) shall be issued by
financially sound insurance companies duly authorized to
conduct business in the State of Colorado, (ii) shall require
the insurance companies to give the parties thirty (30) days
prior written notice in the event of cancellation or material
alteration of coverage, (iii) shall name ConAgra as additional
insured with respect to all liability insurance of the type
required under Section 5(a) above, and (iv) shall provide that
in respect of the interest of ConAgra in such policies the
insurance shall not be invalidated by any action or inaction
of Xxxxxxx or the Companies. Each insurance policy maintained
by Xxxxxxx and its respective coverage amounts, (i) shall be
primary without right of contribution from any other insurance
which is carried by ConAgra and (ii) shall expressly provide
that all of the provisions thereof, except the limits of
liability shall operate in the same manner as if there were a
separate policy covering each insured. The parties acknowledge
that Xxxxxxx'x aircraft liability coverage will be primary
with respect to the Xxxxxxx Plane (or any aircraft leased by
Xxxxxxx if Xxxxxxx is leasing such plane), notwithstanding
that the pilot in command may be employed by ConAgra.
Upon execution hereof, and upon request of a party thereafter,
each party shall furnish the other party a certificate of
insurance evidencing the coverages required hereunder and
acknowledging and approving this Agreement.
6. Non-liability. ConAgra shall not be liable for, and Xxxxxxx waives,
releases and covenants not to xxx ConAgra for, any claim, liability, damage,
cost, fine, penalty or expense in any way relating to the maintenance, repair or
operation of the Xxxxxxx Plane, notwithstanding that such activities are
performed by the Personnel. Xxxxxxx shall not be liable for, and ConAgra waives,
releases and covenants not to xxx Xxxxxxx for, any claim, liability, damage,
cost, fine, penalty or expense in any way relating to the maintenance, repair or
operation of the ConAgra Plane.
In addition, the parties hereby release each other and their respective
officers, employees, and agents from all claims for damage to each of their
Planes, other than claims that may be due to or result from the gross negligence
or willful misconduct of any of the parties or their respective officers,
agents, or employees (other than the Personnel, the release with respect to
which is addressed in Section 5(c) above).
7. Indemnification. During the course of, and upon and after
termination of this Agreement for any reason, Xxxxxxx and the Companies hereby,
jointly and severally, agree to indemnify, defend and hold ConAgra harmless from
and against any and all loss, damage, liability, cost and expense whatsoever,
(including, but not limited to court costs and attorney's fees) (collectively
"Costs"), incident to any claim, action, or proceedings (each a "Claim") against
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ConAgra which arise out of or relate to (a) the performance of services by the
Personnel to, for or in connection with the Xxxxxxx Plane, or (b) the acts,
omissions, negligence or willful misconduct of the Personnel, Xxxxxxx, or
Xxxxxxx'x employees, agents and contractors, in connection with the possession,
handling, use, maintenance, repair or operation of the Xxxxxxx Plane. During the
course of, and upon and after termination of this Agreement for any reason,
ConAgra agrees to indemnify, defend and hold Xxxxxxx and the Companies harmless
from and against any and all Costs incident to any Claim against Xxxxxxx and any
of the Companies which arise out of or relate to (a) the performance of services
by the Personnel to, for or in connection with the ConAgra Plane, or (b) the
acts, omissions, negligence or willful misconduct of the Personnel, ConAgra or
ConAgra's employees, agents and contractors in connection with the possession,
handling, use, maintenance, repair or operation of the ConAgra Plane.
8. Term and Termination. The term of this Agreement shall be two (2)
years, commencing on September 19, 2002 (the "Commencement Date and ending on
September 18, 2004 (the "Termination Date"). This Agreement may be terminated
before the Termination Date under the following circumstances:
(a) By mutual agreement of ConAgra and Xxxxxxx which shall be
binding on all the parties.
(b) At the option of ConAgra or Xxxxxxx on ninety (90) days prior
written notice to the other parties.
(c) At the option of either ConAgra or Xxxxxxx, upon ten (10) days
prior written notice to the other parties, in the event either
of the Mechanics employment with ConAgra is terminated, or two
(2) or more of the Pilots employment with ConAgra is
terminated.
(d) If one of the parties breaches the terms of this Agreement,
any other party may give the breaching party a notice in
writing which specifically sets out the nature and extent of
the breach, and the steps that must be taken to cure the
breach.
After receiving such a written notice, the breaching party
will then have ten (10) days to cure the breach. If the
breaching party does not do so, any non-breaching party will
have the right to terminate this Agreement.
(e) In the event that a party to this Agreement incurs costs,
expenses, and attorneys' fees in connection with protecting
its rights or enforcing its remedies following a breach of
this Agreement by the other party (as finally determined in
accordance with one of the methods listed below), the
breaching party must reimburse the non-breaching party for all
such costs, expenses, and attorneys' fees, regardless of
whether or not the protection of rights or the enforcement of
remedies involved judicial proceedings, arbitration
proceedings, or other formal dispute resolution proceedings.
The breaching party must reimburse the non-breaching party for
these costs, expenses, and attorneys' fees within ten (10)
days of receiving a reasonably detailed reimbursement claim
from the non-breaching party.
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(f) Expiration or termination of this Agreement shall not affect
any rights or obligations of any party which have accrued up
to the date of termination or expiration, or which otherwise
survive termination in accordance with their respective terms.
9. Survival of Claims. Any claims that the parties have against each
other that arise out of actions or omissions that take place while this
Agreement is in effect will survive the termination of this Agreement for three
(3) years after termination of this Agreement. In addition, the provisions of
Sections 5, 6, 7, 8 and 9 hereof shall survive termination of this Agreement.
10. Authority. The parties to this Agreement represent and warrant to
each other that they have taken all corporate action necessary to authorize them
to enter into and be bound by this Agreement. The parties further represent and
warrant to each other that the officer signing this Agreement on behalf of each
party has the necessary authority to do so, and has the authority to bind the
party on whose behalf he is signing to perform its duties and obligations under
this Agreement.
11. Notices. All written notices sent under this Agreement will be sent
by certified mail, return receipt requested, or by facsimile. All such notices
will be effective upon receipt.
Notices to ConAgra will be addressed as follows:
ConAgra Flight Operations
0000 Xxxxxxxxx Xxxxx
Xxxxxx Xxxxxxxx
Xxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxxxx
Facsimile No.: (000) 000-0000
With a copy to:
ConAgra Foods, Inc.
Xxx XxxXxxx Xxxxx
Xxxxx, Xxxxxxxx 00000-0000
Attention: Senior Vice President - Controller
Facsimile No. (000) 000-0000
Notices to Xxxxxxx will be addressed as follows:
Xxxxxxx International Sales Corporation
0000 Xxxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: President
Facsimile No. (000) 000-0000
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With a copy to:
Xxxxxx & Xxxxxx L.L.P.
0000 Xxxxxxxx Xxxx Xxxxxx
0000 Xxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Facsimile No. (000) 000-0000
Notices to the Companies will be addressed as follows:
c/o Swift & Company
0000 Xxxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: President
Facsimile No. (000) 000-0000
12. Governing Law. This Agreement will be interpreted and enforced in
accordance with the laws of the State of Colorado.
13. Assignment. This Agreement may be assigned by either party with
prior written notice to the other party.
14. Entire Agreement. This Agreement and the other documents referenced
in it set out the entire agreement between the parties regarding the matters
described in this Agreement. The parties agree that there are no other oral or
written understandings or agreements between them regarding these matters, and
that this Agreement and the other documents referenced in it supersede any
previous oral or written understandings or agreements.
15. Interpretation. This Agreement and any other documents related to
it will be interpreted in a fair and neutral manner, without favoring one party
over the other. No provision of this Agreement or any other document related to
it will be interpreted for or against any party because the provision was
drafted by that party or its legal representatives.
16. Amendment, Modification, or Waiver. No amendment, modification, or
waiver of any provision of this Agreement or any other document related to it
will be effective unless it is made in writing, unless it is signed by the
parties to be bound by it, and unless it clearly specifies the nature and extent
of the amendment, modification, or waiver.
17. Severability. If any provision of this Agreement is held to be
invalid or unenforceable under any applicable law, that holding will not affect
the validity or enforceability of the rest of the Agreement. Also, any provision
of this Agreement which is held to be invalid or unenforceable will not be
completely invalidated, but will instead be considered amended to the extent
necessary to remove the cause of the invalidity or the unenforceability.
18. Relationship of Parties. The relationship of the parties hereunder
shall be that of independent contractors, and nothing shall be construed to
alter this relationship. Nothing herein
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shall be construed to create a relationship of partner, agency, joint venture or
employer/employee between the parties.
19. No Waiver. If either party to this Agreement fails to insist upon
strict performance of any obligation under this Agreement or any other document
related to it, that failure will not result in a waiver of that party's right to
demand strict performance in the future. This will be the case no matter how
long the failure to insist upon strict performance continues.
20. Force Majeure. ConAgra and Xxxxxxx shall be excused from their
individual obligations under this Agreement to the extent that any delay or
failure in the performance of such obligations results from any cause beyond its
reasonable control (and without the fault of ConAgra or Xxxxxxx), including,
without limitation, performance by third parties, power failures, computer
equipment or system failures, acts of God, acts of civil or military authority,
embargoes, epidemics, war, terrorism, riots, insurrections, fires, explosions,
earthquakes, floods, severe weather conditions or labor problems.
21. Successors and Assigns. This Agreement will be binding upon and
will continue in effect for the benefit of the parties hereto, as well as their
successors and permitted assigns.
22. Headings and Captions. The headings and captions of the sections
and subsections of this Agreement are for convenience of reference only. Those
headings and captions are not part of this Agreement, and will not be used in
interpreting the Agreement.
23. Consent to Jurisdiction. The parties hereto hereby irrevocably
submit to the exclusive jurisdiction of any United States federal or Colorado
state court sitting Colorado in any action or proceeding arising out of or
relating to this Agreement and each of the parties hereto hereby irrevocably
agrees that all claims in respect of such action or proceeding shall be heard
and determined in any such court and irrevocably waives any objection it may now
or hereafter have as to the venue of any such suit, action or proceeding brought
in such a court or that such court is an inconvenient forum.
[Signatures on next page]
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IN WITNESS WHEREOF, the parties to this Agreement have executed this Agreement
effective as of the date set forth above.
CONAGRA FOODS, INC., XXXXXXX INTERNATIONAL SALES
a Delaware corporation CORPORATION, a Colorado corporation
By: /s/ XXXXXXX X. XXXXX By: /s/ XXXXX X. XXXXXX
-------------------------------- --------------------------------
Print Name: Xxxxxxx X. Xxxxx Print Name: Xxxxx Xxxxxx
------------------------ ------------------------
Title: Authorized Representative Title: Vice President
----------------------------- -----------------------------
SWIFT & COMPANY, SWIFT BEEF COMPANY,
a Delaware corporation a Delaware corporation
By: /s/ XXXXX X. XXXXXX By: /s/ XXXXX X. XXXXXX
-------------------------------- --------------------------------
Print Name: Xxxxx X. Xxxxxx Print Name: Xxxxx Xxxxxx
------------------------ ------------------------
Title: Vice President Title: Vice President
----------------------------- -----------------------------
SWIFT MEATS HOLDING SWIFT CATTLE HOLDCO, INC.,
COMPANY, a Delaware corporation a Delaware corporation
By: /s/ XXXXX X. XXXXXX By: /s/ XXXXX X. XXXXXX
-------------------------------- --------------------------------
Print Name: Xxxxx X. Xxxxxx Print Name: Xxxxx Xxxxxx
------------------------ ------------------------
Title: Vice President Title: Vice President
----------------------------- -----------------------------
S&C HOLDCO 3, INC., SWIFT PORK COMPANY,
a Delaware corporation a Delaware corporation
By: /s/ XXXXX X. XXXXXX By: /s/ XXXXX X. XXXXXX
-------------------------------- --------------------------------
Print Name: Xxxxx X. Xxxxxx Print Name: Xxxxx Xxxxxx
------------------------ ------------------------
Title: Vice President Title: Vice President
----------------------------- -----------------------------
KABUSHIKI KAISHA SAC AUSTRALIA MEAT HOLDINGS PTY.
JAPAN, a Japanese stock corporation LIMITED, an Australian corporation
By: /s/ XXXXXXX X. XXXXX By: XXXXXXX X. XXXXX
-------------------------------- --------------------------------
Print Name: Xxxxxxx X. Xxxxx Print Name: Xxxxxxx X. Xxxxx
------------------------ ------------------------
Title: Attorney-in-Fact Title: Attorney-in-Fact
----------------------------- -----------------------------
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XXXXXXX PTY. LIMITED, SWIFT REFRIGERATED FOODS, S.A
an Australian corporation DE C.V.
By: /s/ XXXXXXX X. XXXXX By: XXXXXXX X. XXXXX
-------------------------------- --------------------------------
Print Name: Xxxxxxx X. Xxxxx Print Name: Xxxxxxx X. Xxxxx
------------------------ ------------------------
Title: Attorney-in-Fact Title: Attorney-in-Fact
----------------------------- -----------------------------
XXXXXX BROS. CO., XXXXXXX FOOD DISTRIBUTION
INC., a Utah corporation COMPANY, a Colorado corporation
By: /s/ XXXXX X. XXXXXX By: /s/ XXXXX X. XXXXXX
-------------------------------- --------------------------------
Print Name: Xxxxx X. Xxxxxx Print Name: Xxxxx Xxxxxx
------------------------ ------------------------
Title: Vice President Title: Vice President
----------------------------- -----------------------------
XXXXXXX FINANCE COMPANY, XXXXXXX, INC.,
INC., a Colorado corporation a Delaware corporation
By: /s/ XXXXX X. XXXXXX By: /s/ XXXXX X. XXXXXX
-------------------------------- --------------------------------
Print Name: Xxxxx X. Xxxxxx Print Name: Xxxxx Xxxxxx
------------------------ ------------------------
Title: Vice President Title: Vice President
----------------------------- -----------------------------
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EXHIBIT 1
MECHANICS
---------
Name Position
---- --------
Xxxxxxx Xxxx Chief of Maintenance
Xxx Xxxxxx Line Service/Mechanic
PILOTS
------
Name Position
---- --------
Xxxxx Xxxxx Chief Pilot
Xxx Xxxxxxxxxx Pilot
Xxx Xxxxxxxx Pilot
Xxxx Xxxxxxxxx Pilot
Xxxx X'Xxxxx Pilot
SCHEDULER
---------
Name Position
---- --------
Xxxxx Xxxxxx Aircraft Scheduler
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