EXHIBIT 10.1
[SWIFT & COMPANY LOGO]
$550,000,000
CREDIT AGREEMENT
DATED AS OF SEPTEMBER 19, 2002
AMONG
SWIFT & COMPANY
S&C AUSTRALIA HOLDCO PTY. LTD.
(ACN: ▇▇▇ ▇▇▇ ▇▇▇)
AUSTRALIA MEAT HOLDINGS PTY. LIMITED
(ACN: 011 062 338)
AS BORROWERS
S&C HOLDCO 3, INC.
AS HOLDINGS
AND
THE LENDERS AND ISSUERS PARTY HERETO
AND
CITICORP USA, INC.
AS ADMINISTRATIVE AGENT, AUSTRALIAN AGENT AND COLLATERAL AGENT
AND
JPMORGAN CHASE BANK
AS SYNDICATION AGENT
AND
CITISECURITIES LIMITED
(ACN: ▇▇▇ ▇▇▇ ▇▇▇)
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
AS CO-DOCUMENTATION AGENTS
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
AND
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
AS JOINT LEAD ARRANGERS AND JOINT BOOK MANAGERS
WEIL, GOTSHAL & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
ARTICLE I DEFINITIONS, INTERPRETATION AND ACCOUNTING TERMS.............................1
Section 1.1 Defined Terms................................................................1
Section 1.2 Computation of Time Periods.................................................57
Section 1.3 Accounting Terms and Principles.............................................57
Section 1.4 Conversion of Foreign Currencies............................................58
Section 1.5 Certain Terms...............................................................58
ARTICLE II THE FACILITIES..............................................................59
Section 2.1 The Commitments.............................................................59
Section 2.2 Borrowing Procedures........................................................60
Section 2.3 Swing Loans.................................................................63
Section 2.4 Letters of Credit...........................................................65
Section 2.5 Reduction and Termination of the Revolving Credit Commitments...............71
Section 2.6 Repayment of Loans..........................................................71
Section 2.7 Evidence of Debt............................................................72
Section 2.8 Optional Prepayments........................................................73
Section 2.9 Mandatory Prepayments.......................................................73
Section 2.10 Interest....................................................................76
Section 2.11 Conversion and Continuation.................................................78
Section 2.12 Fees........................................................................80
Section 2.13 Payments and Computations...................................................81
Section 2.14 Special Provisions Governing External Rate Loans............................85
Section 2.15 Capital Adequacy............................................................87
Section 2.16 Taxes.......................................................................87
Section 2.17 Substitution of Lenders.....................................................91
ARTICLE III CONDITIONS TO LOANS AND LETTERS OF CREDIT...................................93
Section 3.1 Conditions Precedent to Initial Loans and Letters of Credit.................93
Section 3.2 Conditions Precedent to Each Loan and Letter of Credit......................98
Section 3.3 Determinations of Initial Borrowing Conditions..............................99
ARTICLE IV REPRESENTATIONS AND WARRANTIES..............................................99
Section 4.1 Corporate Existence; Compliance with Law....................................99
Section 4.2 Corporate Power; Authorization; Enforceable Obligations....................100
Section 4.3 Ownership of Company; Subsidiaries.........................................101
Section 4.4 Financial Statements.......................................................101
Section 4.5 Material Adverse Change....................................................102
Section 4.6 Solvency...................................................................102
Section 4.7 Litigation.................................................................102
Section 4.8 Taxes......................................................................103
Section 4.9 Full Disclosure............................................................103
Section 4.10 Margin Regulations.........................................................104
Section 4.11 No Burdensome Restrictions; No Defaults....................................104
Section 4.12 Investment Company Act; Public Utility Holding Company Act.................104
Section 4.13 Use of Proceeds............................................................104
Section 4.14 Ranking....................................................................105
Section 4.15 Insurance..................................................................105
Section 4.16 Labor Matters..............................................................105
Section 4.17 Compensation Plans; ERISA..................................................106
Section 4.18 Environmental Matters......................................................106
Section 4.19 Intellectual Property......................................................107
Section 4.20 Title; Real Property.......................................................108
Section 4.21 Related Documents..........................................................108
Section 4.22 Australian Representations and Warranties..................................109
ARTICLE V FINANCIAL COVENANTS........................................................110
Section 5.1 Maximum Leverage Ratio.....................................................110
Section 5.2 Minimum Interest Coverage Ratio............................................111
Section 5.3 Minimum Fixed Charge Coverage Ratio........................................112
ARTICLE VI REPORTING COVENANTS........................................................113
Section 6.1 Financial Statements.......................................................113
Section 6.2 Default Notices............................................................115
Section 6.3 Litigation.................................................................115
Section 6.4 Asset Sales................................................................115
Section 6.5 Notices under Related Documents............................................115
Section 6.6 SEC Filings; Press Releases................................................116
Section 6.7 Labor Relations............................................................116
Section 6.8 Tax Returns................................................................116
Section 6.9 Insurance..................................................................116
Section 6.10 ERISA Matters..............................................................116
Section 6.11 Environmental Matters......................................................117
Section 6.12 Borrowing Bases Determination..............................................118
Section 6.13 Customer Contracts.........................................................119
Section 6.14 Other Information..........................................................119
ARTICLE VII AFFIRMATIVE COVENANTS......................................................120
Section 7.1 Preservation of Corporate Existence, Etc...................................120
Section 7.2 Compliance with Laws, Etc..................................................120
Section 7.3 Conduct of Business........................................................120
Section 7.4 Payment of Taxes, Etc......................................................120
Section 7.5 Maintenance of Insurance...................................................120
Section 7.6 Access.....................................................................121
Section 7.7 Keeping of Books...........................................................121
Section 7.8 Maintenance of Properties, Etc.............................................121
Section 7.9 Use of Proceeds; Ranking...................................................121
Section 7.10 Environmental..............................................................122
Section 7.11 Additional Collateral and Guaranties.......................................122
Section 7.12 Landlord Waivers and Bailee's Letters......................................124
Section 7.13 Control Accounts; Approved Deposit Accounts................................124
Section 7.14 Real Property..............................................................126
Section 7.15 Post-Closing Deliveries....................................................127
ARTICLE VIII NEGATIVE COVENANTS.........................................................127
Section 8.1 Indebtedness...............................................................127
Section 8.2 Liens, Etc.................................................................129
Section 8.3 Investments................................................................130
Section 8.4 Sale of Assets.............................................................132
Section 8.5 Restricted Payments........................................................133
Section 8.6 Prepayment and Cancellation of Indebtedness................................135
Section 8.7 Restriction on Fundamental Changes; Permitted Acquisitions.................136
Section 8.8 Change in Nature of Business...............................................136
Section 8.9 Transactions with Permitted Joint Ventures and Affiliates..................136
Section 8.10 Limitations on Restrictions on Subsidiary Distributions; No New Negative
Pledge.....................................................................137
Section 8.11 Modification of Constituent Documents......................................137
Section 8.12 Modification of Related Documents..........................................138
Section 8.13 Modification of Permitted Unsecured Indebtedness...........................138
Section 8.14 Accounting Changes; Fiscal Year............................................138
Section 8.15 Margin Regulations.........................................................138
Section 8.16 ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act.........................................................139
Section 8.17 Operating Leases; Sale/Leasebacks..........................................139
Section 8.18 No Speculative Transactions................................................139
Section 8.19 Compliance with ERISA......................................................139
Section 8.20 Environmental..............................................................139
ARTICLE IX EVENTS OF DEFAULT..........................................................140
Section 9.1 Events of Default..........................................................140
Section 9.2 Remedies...................................................................143
Section 9.3 Actions in Respect of Letters of Credit....................................143
Section 9.4 Rescission.................................................................144
ARTICLE X THE ADMINISTRATIVE AGENT; OTHER AGENTS.....................................144
Section 10.1 Authorization and Action...................................................144
Section 10.2 Agent's Reliance, Etc......................................................146
Section 10.3 Each Agent Individually....................................................146
Section 10.4 Lender Credit Decision.....................................................147
Section 10.5 Indemnification............................................................147
Section 10.6 Successor Administrative Agent, Australian Agent and Australian Collateral
Trustee....................................................................147
Section 10.7 Concerning the Collateral and the Collateral Documents.....................149
Section 10.8 Collateral Matters Relating to Related Obligations.........................150
ARTICLE XI MISCELLANEOUS..............................................................151
Section 11.1 Amendments, Waivers, Etc...................................................151
Section 11.2 Assignments and Participations.............................................154
Section 11.3 Costs and Expenses.........................................................160
Section 11.4 Indemnities................................................................161
Section 11.5 Limitation of Liability....................................................162
Section 11.6 Right of Set-off...........................................................163
Section 11.7 Sharing of Payments, Etc...................................................163
Section 11.8 Notices, Etc...............................................................164
Section 11.9 No Waiver; Remedies........................................................165
Section 11.10 Binding Effect.............................................................166
Section 11.11 Waiver of Judicial Bond....................................................166
Section 11.12 Waiver of Immunity.........................................................166
Section 11.13 Currency of Payment........................................................166
Section 11.14 Governing Law..............................................................167
Section 11.15 Submission to Jurisdiction; Service of Process.............................167
Section 11.16 Waiver of Jury Trial.......................................................168
Section 11.17 Marshaling; Payments Set Aside.............................................168
Section 11.18 Section Titles.............................................................169
Section 11.19 Execution in Counterparts..................................................169
Section 11.20 Entire Agreement...........................................................169
Section 11.21 Confidentiality............................................................169
TABLE OF CONTENTS
(CONTINUED)
SCHEDULES
Schedule I - Commitments
Schedule II - Applicable Lending Offices and Addresses for Notices
Schedule III - Post-Closing Acquisition Transactions
Schedule 2.4 - Existing Letters of Credit
Schedule 4.2 - Consents
Schedule 4.3 - Ownership of Subsidiaries
Schedule 4.5 - Additional Disclosures
Schedule 4.7 - Litigation
Schedule 4.8 - Taxes
Schedule 4.16 - Labor Matters
Schedule 4.17 - List of Plans
Schedule 4.18 - Environmental Matters
Schedule 4.19 - Intellectual Property
Schedule 4.20 - Real Property
Schedule 4.22 - Australian Trusts and Settlements
Schedule 7.15 - Post-Closing Deliveries
Schedule 8.1 - Existing Indebtedness
Schedule 8.2 - Existing Liens
Schedule 8.3 - Existing Investments
EXHIBITS
Exhibit A - Form of Assignment and Acceptance
Exhibit B-1 - Form of Term Loan Note
Exhibit B-2 - Form of Dollar Revolving Credit Note
Exhibit B-3 - Form of Australian Dollar Revolving Credit Note
Exhibit C-1 - Form of Notice of Borrowing in Dollars
Exhibit C-2 - Form of Notice of Australian Dollar Borrowing
Exhibit D - Form of Swing Loan Request
Exhibit E - Form of Letter of Credit Request
Exhibit F - Form of Notice of Conversion or Continuation
Exhibit G-1 - Form of Opinion of U.S. Counsel for the Loan Parties
Exhibit G-2 - Form of Opinion of Australian Counsel for the Loan Parties
Exhibit H-1 - Form of Domestic Guaranty
Exhibit H-2 - Form of Non-U.S. Guaranty
Exhibit I - Form of Pledge and Security Agreement
Exhibit J - Form of Borrowing Base Certificate
CREDIT AGREEMENT, dated as of September 19, 2002, among SWIFT
& COMPANY, a Delaware corporation (the "Company"), S&C AUSTRALIA HOLDCO PTY.
LTD., a New South Wales, Australia company ("Australian Holdings"), AUSTRALIA
MEAT HOLDINGS PTY. LIMITED (the "Australian Company" and, together with
"Australian Holdings", the "Australian Borrowers"), S&C HOLDCO 3, INC., a
Delaware corporation ("Holdings"), the Lenders (as defined below), the Issuers
(as defined below), CITICORP USA, INC. ("Citicorp"), as administrative and
collateral agent for the Lenders and the Issuers (in such capacity, the
"Administrative Agent") and as Australian agent for the Lenders and Issuers,
JPMORGAN CHASE BANK ("JPMorgan"), as syndication agent for the Lenders and the
Issuers (in such capacity, the "Syndication Agent"), CITISECURITIES LIMITED
("Citisecurities"), as Australian Collateral Trustee for the Lenders and Issuers
(in such capacity, the "Australian Collateral Trustee") and GENERAL ELECTRIC
CAPITAL CORPORATION, a Delaware corporation ("GECC"), U.S. BANK NATIONAL
ASSOCIATION ("U.S. Bank"), and COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK
B.A., "RABOBANK INTERNATIONAL",
NEW YORK BRANCH ("Rabobank"), each as
co-documentation agent for the Lenders and Issuers (each, in such capacity, a
"Documentation Agent").
WITNESSETH:
WHEREAS, the Borrowers have requested that the Lenders and
Issuers make available for the purposes specified in this Agreement term loans
and a revolving credit, letter of credit and bank guarantee facility; and
WHEREAS, the Lenders and Issuers are willing to make available
to the Borrowers such term loans and revolving credit, letter of credit and bank
guarantee facility upon the terms and subject to the conditions set forth
herein;
NOW, THEREFORE, in consideration of the premises and the
covenants and agreements contained herein, the parties hereto hereby agree as
follows:
ARTICLE I
DEFINITIONS, INTERPRETATION AND ACCOUNTING TERMS
SECTION 1.1 DEFINED TERMS
As used in this Agreement, the following terms have the
following meanings (such meanings to be equally applicable to both the singular
and plural forms of the terms defined):
"Account" (a) in respect of any "Account" of any Australian
Subsidiary, means any "Receivables", as defined in any Australian Collateral
Document and (b) in respect of all other assets, has the meaning specified in
the Pledge and Security Agreement.
"Account Debtor" (a) in respect of Accounts of the Australian
Subsidiaries, the Person obligated under such Accounts and (b) otherwise, has
the meaning specified in the Pledge and Security Agreement.
CREDIT AGREEMENT
SWIFT & COMPANY
"Acquired Companies" means the "Acquired Companies" under and
as defined in the Acquisition Agreement.
"Acquisition" means the acquisition by Acquisition Co. of a
majority of the outstanding capital stock of SFC, the indirect parent of the
Company, from the Seller and the consummation of the other transactions
described in the Acquisition Agreement (including the actions described in
Sections 2.1 (Certain Pre-Closing Covenants and Actions) and 2.2 (Payment of
Consideration) thereof).
"Acquisition Agreement" means the Agreement, dated as of May
20, 2002, by and among the Seller, SFC and Acquisition Co., as amended by the
amendments dated as of July 3, 2002 and September 3, 2002, together with any
other amendments, restatements, supplements and other modifications permitted
hereunder.
"Acquisition Co." means HMTF Rawhide, L.P., a Delaware limited
partnership.
"Acquisition Consideration" means, with respect to any
Proposed Acquisition, as at the date of the consummation of such Proposed
Acquisition, all consideration therefor, including, without duplication, (a) the
Stock and Stock Equivalents to be transferred by any Loan Party or any
Subsidiary thereof in connection therewith, (b) any cash and fair market value
of other property (excluding property described in clause (a) above) given as
consideration therefor, (c) any Indebtedness incurred, assumed or acquired by
any Loan Party or any Subsidiary thereof in connection with such Proposed
Acquisition (other than, to the extent no payment is required thereunder because
of such Proposed Acquisition, Indebtedness described in clause (i) of the
definition of Indebtedness and that, immediately after such Proposed Acquisition
and satisfaction of all requirements of Section 7.11 (Additional Collateral and
Guaranties) resulting therefrom or otherwise outstanding, will be permitted to
be incurred pursuant to Section 8.18 (No Speculative Transactions)), (d) all net
additional purchase price amounts, including in the form of earnouts, Guaranty
Obligations and other contingent obligations, (e) all consideration paid or to
be paid by any Loan Party or any Subsidiary thereof in respect of covenants not
to compete, employment, consulting and similar agreements and other affiliated
contracts in connection with such Proposed Acquisition, (f) all other
consideration given by any Loan Party or any Subsidiary thereof in connection
with such Proposed Acquisition and (g) out-of-pocket transaction costs for the
services and expenses of attorneys, accountants and other consultants incurred
in effecting such Proposed Acquisition, and other similar transaction costs so
incurred; provided, however, that, if any such Loan Party or Subsidiary thereof
receives any consideration in the form of cash from the Seller in respect of
such transaction, "Acquisition Consideration" shall be reduced by the amount
thereof, to the extent such cash is not otherwise taken into account in the
calculation of the amounts set forth in clauses (a) through (g) above.
"Acquisition Documents" means the Acquisition Agreement (and
the related Cattle Supply Agreement, Preferred Supplier Agreement, By-Products
Marketing Agreement, Transition Services Agreement, Stockholders' Agreement,
Trademark License Agreement, Hangar License Agreement and Patent License
Agreement), the Seller Note, the Management Agreement, the Financial Advisory
Agreement, the agreements evidencing the employment and severance arrangements
with senior management of the Company and its Subsidiaries, the Indemnification
and Release Agreement, the Cost Indemnification Letter and the Hyrum Lease, in
each case together with the schedules, exhibits, annexes and exhibits thereto.
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CREDIT AGREEMENT
SWIFT & COMPANY
"Additional Australian Collateral Documents" means the
intellectual property notations of security interest by any of Australian
Holdings and its Subsidiaries, as applicable, for the benefit of the Australian
Collateral Trustee.
"Additional Unsecured Indebtedness" means unsecured
Indebtedness of Holdings or the Company that (a) is junior or pari passu with
the Senior Notes, (b) bears interest and provides for the payment of fees on
terms and conditions not significantly less favorable to any Loan Party from
those offered to borrowers in the marketplace for similar facilities, (c) has a
maturity not earlier and an average life to maturity not less than that of the
Senior Notes or, if such Indebtedness is junior to the Senior Notes, the
Subordinated Notes (calculated, with respect to the Senior Notes or, as the case
may be, the Subordinated Notes, both on the Closing Date and at the time of
incurrence of such Indebtedness), (d) allows for the mandatory prepayments
provided hereunder, (e) is otherwise on terms and conditions that, taken as a
whole, are not less favorable to the Loan Parties and the interests of any
Agent, Lender, Issuer or Secured Party under the Loan Documents than (i) if such
Indebtedness is pari passu with the Senior Notes, those of the Senior Notes and
the Senior Note Indenture and (ii) otherwise, those of the Subordinated Notes
and the Subordinated Note Indenture and (f) if such Indebtedness is incurred by
Holdings, it shall not be guaranteed by the Company or any other Subsidiary of
Holdings.
"Adjusted EBITDA" means with respect to any Person for any
period, EBITDA of such Person for such period; provided, however, that for any
period or portion thereof occurring prior to the Closing Date, EBITDA shall be
adjusted (on a pro rata basis for such period of determination) to give pro
forma effect to each of the following, as if each of the following had occurred
on the first day of the period of determination: (a) the elimination of
businesses and assets not acquired in connection with the Transactions
(including, the elimination of the Cattle Feed Companies, the Divested Companies
(as defined in the Acquisition Agreement) and Weld Insurance Company, (b) the
elimination of historical allocated corporate costs, (c) an adjustment necessary
to reflect the incremental allocated corporate costs as if the Transaction were
consummated on the first day of the period of determination, (d) an adjustment
necessary to reflect incremental standalone costs, which aggregate adjustment
shall be a deduction from EBITDA of (i) $16,800,000 for the period beginning on
the Closing Date and ending on the Sunday immediately preceding November 30,
2002, (ii) $11,200,000 for the period beginning on the Closing Date and ending
on the Sunday immediately preceding February 28, 2003 and (iii) $5,600,000 for
the period beginning on the Closing Date and ending on the Sunday immediately
preceding May 31, 2003 and (e) the non-inclusion of certain pension and retiree
medical plans as part of the Transactions.
"Administrative Agent" has the meaning specified in the
preamble to this Agreement.
"Affected Lender" has the meaning specified in Section 2.17
(Substitution of Lenders).
"Affiliate" means, with respect to any Person, any other
Person directly or indirectly controlling or that is controlled by or is under
common control with such Person, each officer, director, general partner or
joint-venturer of such Person, and each Person that is the beneficial owner of
20% or more (or, if such Person is an Agent, Issuer or Lender (or an Affiliate
or Approved Fund of any of them), 5% or more) of any class of Voting Stock of
such Person. For the purposes of this definition, "control" means the possession
of the power to direct or cause the
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CREDIT AGREEMENT
SWIFT & COMPANY
direction of the management and policies of such Person, whether through the
ownership of voting securities, by contract or otherwise.
"Agent" means each of the Administrative Agent, the
Syndication Agent, the Australian Agent, the Australian Collateral Trustee and
each Documentation Agent.
"Agreement" means this
Credit Agreement.
"Aggregate Available Revolving Credit" means, at any time, the
amount, if any, by which (a) the Aggregate Maximum Revolving Credit at such time
exceeds (b) the aggregate Revolving Credit Outstandings of the Borrowers at such
time.
"Aggregate Borrowing Base" means, at any time, the sum of the
Borrowing Bases of the Borrowers at such time.
"Aggregate Maximum Credit" means, at any time, the amount, if
any, by which (a) the lesser of (i) the sum of (A) the Aggregate Revolving
Credit Commitment at such time and (B) the aggregate principal amount of Term
Loans outstanding at such time and (ii) the Aggregate Borrowing Base at such
time exceeds (b) the Dollar Equivalent of the aggregate amount of any
Availability Reserve in effect at such time.
"Aggregate Maximum Revolving Credit" means, at any time, the
amount, if any, by which (a) the Aggregate Maximum Credit at such time exceeds
(b) the aggregate principal amount of Term Loans outstanding at such time.
"Aggregate Revolving Credit Commitments" means, at any time,
the sum of all Revolving Credit Lender's Revolving Credit Commitments in effect
at such time.
"Aircraft Security Documents" means, in respect to any
aircraft owned by any Loan Party, (a) if such aircraft is registered with the
FAA, (i) an aircraft mortgage and security agreement, duly executed by such Loan
Party in favor of the Administrative Agent, as security agent and mortgagee,
(ii) a satisfactory title search of the FAA registry, (iii) a title memorandum
from counsel to the Administrative Agent certifying that such Loan Party has
clean title to such aircraft, (iv) a ▇▇▇▇ of sale and aircraft registration
application duly filled out and executed by such Loan Party in respect of such
aircraft and (v) applicable FAA application pink forms for such aircraft, and
(b) otherwise, similar documents in the jurisdiction of registration of such
aircraft as may be requested by the Administrative Agent in its reasonable
discretion.
"Alternative Currency" means any lawful currency other than
Dollars that is freely transferable into Dollars.
"Amortization Period" means each of the following periods: (a)
the period from the Closing Date through the last day of the Fiscal Quarter
ending on or about November 30, 2002, (b) each full Fiscal Quarter thereafter
ending on or before the Term Loan Maturity Date (other than the last such Fiscal
Quarter) and (c) the period from the first day of the last such Fiscal Quarter
through the Term Loan Maturity Date.
"Amortized Value" means, at any date of determination in
respect of the Fixed Asset Sublimit, the orderly liquidation value of Eligible
Equipment or the value of Eligible Real Property (each such value being
determined by reference to any Appraisal), the amount of such
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CREDIT AGREEMENT
SWIFT & COMPANY
Fixed Asset Sublimit or such value multiplied by a quotient, (a) the numerator
of which shall be the number of Amortization Periods ending after such date of
determination and on or before the Term Loan Maturity Date and (b) the
denominator of which shall be (i) in the case of the Fixed Asset Sublimit or any
such value determined by reference to an Initial Appraisal, the number of
Amortization Periods ending after the Closing Date and on or before the Term
Loan Maturity Date and (ii) in the case of any such value determined by
reference to an Updated Appraisal, the number of Amortization Periods ending
after the date of such Updated Appraisal and on or before the Term Loan Maturity
Date.
"Annualized" means, with respect to any amount calculated with
respect to any period, (a) if such period is entirely on or after the Closing
Date, such amount and (b) otherwise, such amount divided by the number of days
in such period on or after the Closing Date and multiplied by 365.
"Applicable Lending Office" means, with respect to each Lender
or Issuer (a) in respect of the Term Loan Facility, the Dollar Revolving Credit
Facility or any Letter of Credit requested to be issued from such offices of an
Issuer, its Domestic Lending Office in the case of a Base Rate Loan, and its
Eurodollar Lending Office in the case of a Eurodollar Rate Loan and (b) in
respect of the Australian Dollar Facility or any Letter of Credit requested to
be issued from such office of an Issuer, its Australian Lending Office.
"Applicable Margin" means (a) with respect to Term Loans,
maintained as (i) Base Rate Loans, a rate equal to 2.25% per annum and (ii)
Eurodollar Rate Loans, a rate equal to 3.25% per annum and (b) with respect to
Revolving Loans and Swing Loans, (i) during the period commencing on the Closing
Date and ending on the last day of the month that the Administrative Agent
receives Financial Statements for the second Fiscal Quarter ending after the
Closing Date required to be delivered pursuant to Section 6.1(b) or (c)
(Financial Statements), as applicable, with respect to (A) Revolving Loans or
Swing Loans maintained as Base Rate Loans, a rate equal to 2.25% per annum, (B)
Revolving Loans maintained as Australian Dollar Loans, a rate equal to 2.75% per
annum and (B) Revolving Loans maintained as Eurodollar Rate Loans, a rate equal
to 3.25% per annum and (ii) thereafter, as of any date of determination, a per
annum rate equal to the rate set forth below opposite the then applicable
Leverage Ratio (determined on the last day of the most recent Fiscal Quarter for
which Financial Statements have been delivered pursuant to Section 6.1(b) or (c)
(Financial Statements)) set forth below:
AUSTRALIAN EURODOLLAR
LEVERAGE RATIO BASE RATE LOANS DOLLAR LOANS RATE LOANS
-------------- --------------- ------------ ----------
Greater than or equal to 3.5 to 1 2.50% 3% 3.50%
Less than 3.5 to 1 and equal to or
greater than 3 to 1 2.25% 2.75% 3.25%
Less than 3 to 1 and equal to or
greater than 2.5 to 1 2.00% 2.50% 3.00%
Less than 2.5 to 1 and equal to or
greater than 2 to 1 1.75% 2.25% 2.75%
Less than 2 to 1 1.50% 2% 2.50%
Changes in the Applicable Margin applicable to Revolving Loans and Swing Loans
resulting from a change in the Leverage Ratio on the last day of any subsequent
Fiscal Quarter shall become effective as to all Revolving Loans and Swing Loans
on the first day of the month
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CREDIT AGREEMENT
SWIFT & COMPANY
beginning after delivery by the Company to the Administrative Agent of new
Financial Statements pursuant to Section 6.1(b) or (c) (Financial Statements),
as applicable. Notwithstanding anything to the contrary set forth in this
Agreement (including the Leverage Ratio at any time during such period), if the
Company shall fail to deliver such Financial Statements within any of the time
periods specified in Sections 6.1(b) or (c) (Financial Statements), the
Applicable Margin applicable to Revolving Loans and Swing Loans from and
including the 46th day after the end of such Fiscal Quarter or the 91st day
after the end of such Fiscal Year, as the case may be, to but not including the
date the Company delivers to the Administrative Agent such Financial Statements
shall equal the highest possible Applicable Margin applicable to Revolving Loans
and Swing Loans provided for by this definition.
"Applicable Unused Commitment Fee Rate" means 0.5% per annum.
"Appraisal" means each Initial Appraisal and each Updated
Appraisal.
"Approved Deposit Account" means a Deposit Account that is the
subject of an effective Deposit Account Control Agreement and that is maintained
by any Loan Party with a Deposit Account Bank. "Approved Deposit Account"
includes all monies on deposit in a Deposit Account and all certificates and
instruments, if any, representing or evidencing such Deposit Account.
"Approved Fund" means any Fund that is advised or managed by
(a) a Lender, (b) an Affiliate of a Lender or (c) an entity or Affiliate of an
entity that administers or manages a Lender.
"Approved Securities Intermediary" means (a) with respect to
any Australian Marketable Securities located in Australia or held by any Person
located in Australia, each "participant" as defined in the SCH Business Rules
and (b) otherwise, each "securities intermediary" or "commodity intermediary" as
defined in the UCC, in each case selected or approved by the Administrative
Agent and with respect to which a Loan Party has delivered to the Administrative
Agent a duly executed Control Account Agreement for the applicable jurisdiction.
"Arrangers" means each of ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc. and ▇.▇.
▇▇▇▇▇▇ Securities Inc., in each case in their capacity as joint lead arrangers
and joint book managers.
"Asset Sale" has the meaning specified in Section 8.4 (Sale of
Assets).
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender and an Eligible Assignee, and accepted by the
Administrative Agent, in substantially the form of Exhibit A (Form of Assignment
and Acceptance).
"Associate" means, with respect to any Person, an "associate"
of such Person under and as defined in Section 128F(9) of the Australian Tax
Act.
"Australia" means the Commonwealth of Australia, together with
(other than in the expressions "Australian Commonwealth" or "Commonwealth of
Australia") any State, territory and any political subdivision of any of them.
6
CREDIT AGREEMENT
SWIFT & COMPANY
"Australian Agent" means Citicorp, in its capacity as
Australian agent for the Lenders and Issuers, together with any of its
Affiliates it may appoint to serve in such capacity.
"Australian Asset Sale" has the meaning specified in Section
8.4(j) (Sale of Assets).
"Australian Bank" means a bank authorized to carry out the
business of banking in Australia.
"Australian ▇▇▇▇ Rate" means, for any Interest Period, a
fluctuating rate per annum as shall be in effect from time to time, which rate
per annum shall be equal at all times to the following:
(a) the bid rate (expressed as a percentage yield per annum to
maturity being the arithmetic average, rounded up to the nearest four
decimal places) published at or about 10:10 a.m. (Local Time) on the
first Business Day of such Interest Period on the Reference Screen
under the heading "BBSY" for Bills having a tenor approximating as
closely as possible the length of such Interest Period;
(b) if the rate described under clause (a) above is not
published at the relevant time or the Australian Agent cannot otherwise
determine the rate set forth under clause (a) above, the rate
(expressed as a percentage yield per annum to maturity) determined by
Citibank Australia to be the average of the buying rates quoted to
Citibank Australia by the Australian Reference Banks at or about such
time on the date of determination for Bills with a tenor approximating
as closely as possible the length of such Interest Period; or
(c) if the Australian Agent is unable to determine a rate
under clause (b) above, the rate (expressed as a percentage yield to
maturity) offered or intended to be offered by Citibank Australia, at
or about 10:10 a.m. (Local Time) on the first Business Day of such
Interest Period, for the purchase of Bills (accepted by an Australian
Bank) with a tenor most closely approximating the length of such
Interest Period.
"Australian ▇▇▇▇ Rate Loan" means any Australian Dollar Loan
during any Interest Period during which it bears interest based on the
Australian ▇▇▇▇ Rate.
"Australian Borrower" has the meaning specified in the
preamble to this Agreement.
"Australian Cash Management Documents" means each blocked
account agreement among a Deposit Account Bank, the Australian Collateral
Trustee, the Administrative Agent and each Australian Subsidiary.
"Australian Charge" means each charge (whether fixed or
floating) by Australian Holdings or any of its Subsidiaries in favor of the
Australian Collateral Trustee (together with any similar document as may be
delivered by a Person organized and existing under the laws of Australia
pursuant to Section 7.11 (Additional Collateral and Guaranties)).
"Australian Collateral Documents" means, collectively, the
Australian Charges, the Australian Security Trust Deed, the Australian Mortgages
and all Australian Mortgage
7
Supporting Documents relating thereto, the Australian Share Mortgages and the
Additional Australian Collateral Documents, together with any similar document
as may be delivered by a Person organized and existing under the laws of
Australia pursuant to Section 7.11 (Additional Collateral and Guaranties) and
any other certificate, agreement or document executed by any Loan Party and
granting a Lien to any Agent or Secured Party in Australia.
"Australian Collateral Limit" means, with respect to any
Borrower and any Collateral of any Australian Collateral Type at any time, (a)
if such Collateral is not at such time subject to any Lien granted pursuant to
any Australian Collateral Document having a Stated Limit, there shall be no
"Australian Collateral Limit" for such Collateral, (b) if such Collateral is at
such time subject to any Lien granted pursuant to any Australian Collateral
Document having a Stated Limit, and such Australian Collateral Document does not
purport to grant, and does not grant, a Lien on any Australian Collateral Type
other than that of such Collateral, such Stated Limit and (c) otherwise, if such
Collateral is at such time subject to any Lien granted pursuant to any
Australian Collateral Document having a Stated Limit,
(i) if the Australian Collateral Type of such
Collateral is Accounts, such Stated Limit;
(ii) if the Australian Collateral Type of such
Collateral is Inventory, the amount, if any, by which (A) such Stated
Limit exceeds (B) the face amount of all Eligible Receivables of such
Borrower at such time subject to such Australian Collateral Document at
such time (calculated net of all finance charges, late fees and other
fees that are unearned, sales, excise or similar taxes, and credit or
allowances granted at such time); and
(iii) if the Australian Collateral Type of such
Collateral is Equipment, the amount, if any, by which (A) such Stated
Limit exceeds (B) the sum of (1) the value of all Eligible Inventory of
such Borrower at such time subject to such Australian Collateral
Document (valued at the lowest of (x) the cost of such Eligible
Inventory (on a first-in, first-out basis), (y) the market value of
such Eligible Inventory (on a first-in, first-out basis) and (z) the
orderly liquidation value of such Eligible Inventory (as determined by
reference to the calculations in the most recent Appraisal)) and (2)
the face amount of all Eligible Receivables of such Borrower at such
time subject to such Australian Collateral Document at such time
(calculated net of all finance charges, late fees and other fees that
are unearned, sales, excise or similar taxes, and credit or allowances
granted at such time);
provided, however, that, if any Collateral would otherwise have more than one
"Australian Collateral Limit", the "Australian Collateral Limit" therefor shall
be the lowest such limit.
"Australian Collateral Type" means either Inventory, Equipment
or Accounts.
"Australian Collateral Trustee" has the meaning specified in
the preamble to this Agreement.
"Australian Company" has the meaning specified in the preamble
to this Agreement.
8
CREDIT AGREEMENT
SWIFT & COMPANY
"Australian Corporations Act" means the Corporations ▇▇▇ ▇▇▇▇
(Commonwealth of Australia).
"Australian Debenture" means each debenture issued hereunder
in accordance with the provisions hereof (including without any original issue
discount and for 100% of its face amount), each of which shall have a face
amount of (a) in the case of debentures issued in connection with Obligations
denominated in Dollars, $0.01 (b) in the case of debentures issued in connection
with Obligations denominated in Australian Dollars, A$0.01 and (c) in the case
of debentures issued in connection with any other Obligation, the lowest
monetary denomination of the currency in which such Obligations are denominated.
"Australian Dollar" and the symbol "A$" each mean the lawful
money of Australia.
"Australian Dollar Borrowing" means Australian Dollar Loans
made on the same day by the Australian Dollar Lenders ratably according to their
respective Australian Dollar Sublimits then in effect.
"Australian Dollar Lender" means each Revolving Credit Lender
or Affiliate thereof identified on Schedule I (Commitments) on the date hereof
as an "Australian Dollar Lender" with the Australian Dollar Sublimit set forth
therein and any other Revolving Credit Lender that (a) agrees, with the approval
of the Administrative Agent, the Australian Agent and the Company, which
approval shall not be unreasonably withheld (provided, however, that after the
occurrence and during the continuance of any Event of Default, such approval by
the Company shall not be required), to act, or cause one of its Affiliates to
act, as an Australian Dollar Lender with an Australian Dollar Sublimit agreed to
by the Administrative Agent, the Australian Agent and the Company (provided,
however, that no Revolving Credit Lender or Affiliate thereof shall become an
Australian Dollar Lender to the extent, after giving effect to such Revolving
Credit Lender or Affiliate thereof becoming an Australian Dollar Lender with the
proposed Australian Dollar Sublimit, the aggregate Australian Dollar Sublimits
would exceed the Maximum Australian Dollar Sublimit) and (b) whether directly or
through an Affiliate thereof, at the time of such agreement by such Australian
Dollar Lender, can, on its own, make Australian Dollar Loans to either
Australian Borrower the interest payments with respect to which can be made free
of Australian Withholding Taxes.
"Australian Dollar Loan" has the meaning specified in Section
2.1 (The Commitments).
"Australian Dollar Outstandings" means, at any time, the
Dollar Equivalent of the aggregate principal amount of all Australian Short-Term
Loans and Australian ▇▇▇▇ Rate Loans outstanding at such time.
"Australian Dollar Ratable Portion" means, with respect to any
Australian Dollar Lender (a) at any time prior to the reduction of the
Australian Dollar Sublimits to zero, the percentage obtained by dividing (i) the
Australian Dollar Sublimit of such Lender in effect at such time by (ii) the
aggregate Australian Dollar Sublimits of all Australian Dollar Lenders in effect
at such time and (b) at any time thereafter, the percentage obtained by dividing
(i) the aggregate outstanding principal amount of all Australian Dollar Loans
outstanding at such time and owing to such Australian Dollar Lender by (ii) the
aggregate outstanding principal amount of all Australian Dollar Loans
outstanding at such time.
9
CREDIT AGREEMENT
SWIFT & COMPANY
"Australian Dollar Revolving Credit Note" means each note of
either Australian Borrower payable in Australian Dollars in a principal amount
equal to the amount of such Australian Dollar Lender's Australian Dollar
Sublimit in relation to which Australian Debentures may be issued as a result of
the Australian Dollar Loans made to such Australian Borrower by such Australian
Dollar Lender.
"Australian Dollar Subfacility" means the provisions herein
related to the Australian Dollar Loans.
"Australian Dollar Sublimit" means, with respect to each
Australian Dollar Lender, the amount set forth opposite such Australian Dollar
Lender's name on Schedule I (Commitments) under the caption "Australian Dollar
Sublimit," as amended to reflect each Assignment and Acceptance executed by such
Australian Dollar Lender and as such amount may be reduced pursuant to this
Agreement. The aggregate Australian Dollar Sublimits on the Closing Date shall
be the Maximum Australian Dollar Sublimit.
"Australian Event of Default" means the occurrence of any of
the following: (a) Australian Holdings or any of its Subsidiaries shall become
insolvent or declare that it is insolvent or pass a resolution referred to in
Section 254(N)(1) of the Australian Corporations Act or (b) a Person is
appointed under Australian Requirements of Law to manage any part of the affairs
of Australian Holdings or any Subsidiary thereof.
"Australian GAAP" means generally accepted accounting
principles in Australia, consistently applied.
"Australian Holdings" has the meaning specified in the
preamble to this Agreement.
"Australian Intercompany Collateral Documents" means the
Australian Collateral Documents, insofar as they secure the obligations owing to
the Company under the Australian Intercompany Credit Agreement or the Australian
Intercompany Guaranty.
"Australian Intercompany Credit Agreement" means the credit
agreement, between Australian Holdings, as intercompany borrower and the
Company, evidencing all advances made to Australian Holdings by the Company from
time to time, in form and substance reasonably satisfactory to the
Administrative Agent.
"Australian Intercompany Guaranty" means the guaranty issued
by each of the subsidiaries of Australian Holdings made pursuant to the Non-U.S.
Guaranty of the obligations of Australian Holdings to the Company under the
Australian Intercompany Credit Agreement, each in form and substance
satisfactory to the Administrative Agent, together with any supplements thereto.
"Australian Lending Office" means, with respect to any Lender
or Issuer, the Australian office of such Lender or Issuer (if any) specified as
its "Australian Lending Office" opposite its name on Schedule II (Applicable
Lending Offices and Addresses for Notices) or, in the case of a Lender, on the
Assignment and Acceptance by which it became a Lender or such other office of
such Lender or Issuer as such Lender or Issuer may from time to time specify to
the Company, the Australian Agent and the Administrative Agent.
10
CREDIT AGREEMENT
SWIFT & COMPANY
"Australian Lien" means any notice under Section 218 or 255 of
the Australian Income Tax Assessment ▇▇▇ ▇▇▇▇ (Commonwealth of Australia) or any
similar provision of a law of a Governmental Authority, garnishee order, writ of
execution and assignment of income.
"Australian Loan Party" means each Australian Borrower and
each other Australian Subsidiary that is a Loan Party.
"Australian Mandatory Prepayment" has the meaning specified in
Section 2.9(d) (Mandatory Prepayments).
"Australian Marketable Securities" means any "marketable
security" as defined in the Australian Corporations Act.
"Australian Mortgage" means real property mortgages by each
Australian Subsidiary in favor of the Australian Collateral Trustee on all Real
Property of such Australian Company (unless otherwise agreed by the
Administrative Agent), each in form and substance reasonably satisfactory to the
Administrative Agent (together with any similar document as may be delivered by
Persons organized and existing under the laws of Australia pursuant to Section
7.11 (Additional Collateral and Guaranties)).
"Australian Mortgage Supporting Documents" means, in respect
of each Australian Mortgage, (a) a certificate of title in form and substance
acceptable to the Administrative Agent in respect of each parcel of Real
Property (except, to the extent the state of Queensland, Australia, does not
issue certificates of title, certificates of title for certain Real Properties
located in Queensland, Australia that have not been issued, a list of which has
been provided to the Administrative Agent prior to the Closing Date) subject to
such Australian Mortgage and (b) an opinion of counsel in each jurisdiction
relevant thereto in form and substance and from counsel reasonably satisfactory
to the Administrative Agent.
"Australian Reference Banks" means three Australian Banks
selected by the Australian Agent.
"Australian Register" means that portion of the Register
including information regarding Australian Debentures.
"Australian Security Trust Deed" means the security trust
deed, among the Australian Collateral Trustee, the Company, Australian Holdings
and each of its Subsidiaries.
"Australian Share Mortgage" means each mortgage of all shares
in Australian Holdings or any of its Subsidiaries in favor of the Australian
Collateral Trustee by the Company (together with any similar document as may be
delivered with respect to shares in a Person organized and existing under the
laws of Australia pursuant to Section 7.11 (Additional Collateral and
Guaranties)).
"Australian Short-Term Loan" means any Australian Dollar Loan
during any period during which it bears interest based on the Australian
Short-Term Rate.
"Australian Short-Term Rate" means, with respect to any
period:
11
CREDIT AGREEMENT
SWIFT & COMPANY
(a) the Reserve Bank of Australia Official Cash Rate
(expressed as a percentage yield per annum rounded up to the nearest
two decimal places) published at our about 10:10 a.m. (Local Time) on
the Reference Screen under the heading "RBA"; and
(b) if the rate under clause (a) is not published at the
relevant time, the rate (expressed as a percentage yield per annum)
determined to be the average of the buying rate for Australian Dollar
overnight cash deposits quoted to Citibank Australia from the
Australian Reference Banks at or about that time.
"Australian Subsidiaries" means, collectively, Australian
Holdings and each of its Subsidiaries organized and existing under the laws of
Australia.
"Australian Tax Act" means the Australian Income Tax
Assessment ▇▇▇ ▇▇▇▇ (Commonwealth of Australia) and the Australian Income Tax
Assessment ▇▇▇ ▇▇▇▇ (Commonwealth of Australia), as applicable.
"Australian Withholding Tax" means any Australian Taxes
required to be withheld or deducted from any interest payment made under any
Loan Document under Division 11A of Part III of the Australian Tax Act.
"Availability Reserve" means, at any time, the sum of (a) the
aggregate amount of each Reinvestment Reserve in effect at such time and (b) if
such time is on or after two Business Days after the date of written notice of
any determination thereof to the Company by the Administrative Agent, such
amounts as the Administrative Agent may from time to time establish against the
Facilities, in the Administrative Agent's sole discretion exercised commercially
reasonably and in accordance with customary business practices for comparable
asset based transactions, in order to preserve (i) the value of the Collateral,
(ii) the ability of the Secured Parties to realize such value, (iii) the Liens
of the Secured Parties therein or (iv) the priority of the Obligations relative
to any other liability of Holdings, the Company or any of their respective
Subsidiaries.
"Available Borrowing Base" means, with respect to any Borrower
at any time, the amount, if any, by which (a) the Maximum Available Borrowing
Base of such Borrower at such time exceeds (b) the aggregate Revolving Credit
Outstandings owing by such Borrower and its Borrowing Base Contributors at such
time.
"Bailee's Letter" means a letter in form and substance
acceptable to the Administrative Agent and executed by any Person (other than
the Borrowers and their respective Borrowing Base Contributors) that is in
possession of Inventory on behalf of any Borrower or any Borrowing Base
Contributor thereof pursuant to which such Person acknowledges, among other
things, if applicable in the relevant jurisdiction, the Administrative Agent's
or the Australian Collateral Trustee's Lien with respect thereto.
"Bankruptcy Code" means title 11, United States Code.
"Base Rate" means, for any period, a fluctuating interest rate
per annum as shall be in effect from time to time, which rate per annum shall be
equal at all times to the highest of the following:
12
CREDIT AGREEMENT
SWIFT & COMPANY
(a) the rate of interest announced publicly by Citibank in
New
York,
New York, from time to time, as Citibank's base rate;
(b) the sum (adjusted to the nearest 0.25% or, if there is no
nearest 0.25%, to the next higher 0.25%) of (i) 0.5% per annum, (ii)
the rate per annum obtained by dividing (A) the latest three-week
moving average of secondary market morning offering rates in the United
States for three-month certificates of deposit of major United States
money market banks, such three-week moving average being determined
weekly on each Monday (or, if any such day is not a Business Day, on
the next succeeding Business Day) for the three-week period ending on
the previous Friday by Citibank on the basis of such rates reported by
certificate of deposit dealers to and published by the Federal Reserve
Bank of
New York or, if such publication shall be suspended or
terminated, on the basis of quotations for such rates received by
Citibank from three
New York certificate of deposit dealers of
recognized standing selected by Citibank, by (B) a percentage equal to
100% minus the average of the daily percentages specified during such
three-week period by the Federal Reserve Board for determining the
maximum reserve requirement (including any emergency, supplemental or
other marginal reserve requirement) for Citibank in respect of
liabilities consisting of or including (among other liabilities)
three-month U.S. dollar nonpersonal time deposits in the United States
and (iii) the average during such three-week period of the maximum
annual assessment rates estimated by Citibank for determining the then
current annual assessment payable by Citibank to the Federal Deposit
Insurance Corporation (or any successor) for insuring Dollar deposits
in the United States; and
(c) 0.5% per annum plus the Federal Funds Rate.
"Base Rate Loan" means any Swing Loan or any other Loan during
any period in which it bears interest based on the Base Rate.
"▇▇▇▇" means a "▇▇▇▇ of exchange" (other than a "cheque"
(check)) under and as defined in the Australian Bills of Exchange ▇▇▇ ▇▇▇▇
(Commonwealth of Australia). Each reference herein to "drawing", "accepting",
"indorsing", or any other dealing with, a "▇▇▇▇" shall have the meaning ascribed
thereto by such Bills of Exchange Act.
"Borrower" means each of the Company and each Australian
Borrower.
"Borrowing" means a Revolving Credit Dollar Borrowing, an
Australian Dollar Borrowing or a Term Loan Borrowing.
"Borrowing Base" means, with respect to any Borrower at any
time, (a) the sum of (i) the Dollar Equivalent of the maximum stated amount of
all Government Bank Guarantees of such Borrower to the extent cash collateral
has been provided therefor at such time in the amounts required and otherwise in
accordance with Section 9.3 (Actions in Respect of Letters of Credit), (ii) the
Receivables Borrowing Base of such Borrower at such time, (iii) the Inventory
Borrowing Base of such Borrower at such time and (iv) the Fixed Asset Borrowing
Base of such Borrower at such time minus (b) the Dollar Equivalent of the
aggregate amount of any Eligibility Reserve applicable to such Borrower and its
Borrowing Base Contributors then in effect.
"Borrowing Base Certificate" means a certificate of the
Borrowers substantially in the form of Exhibit J (Form of Borrowing Base
Certificate), together with supporting
13
documents showing in reasonable details the calculations used to derive the
amounts set forth in such certificate.
"Borrowing Base Contributor" means (a) in the case of the
Company, (i) Swift Beef Company, a Delaware corporation, Swift Pork Company, a
Delaware Corporation, Swift Brands Company, a Delaware corporation, ▇▇▇▇▇▇
Brothers Company, Inc., a Utah corporation, ▇▇▇▇▇▇▇ Food Distribution Company, a
Colorado corporation, ▇▇▇▇▇▇▇ International Sales Corporation, a Colorado
corporation, and ▇▇▇▇▇▇▇, Inc., a Delaware corporation, as long as such
companies are Wholly-Owned Subsidiaries of the Company and Domestic Subsidiary
Guarantors and (ii) any other Wholly-Owned Subsidiary of the Company that is a
Domestic Subsidiary Guarantor and whose designation as a "Borrowing Base
Contributor" of the Company has been approved by the Administrative Agent in its
sole discretion, exercised commercially reasonably, and the Requisite Lenders
and (b) in the case of either Australian Borrower, (i) the Company and its
Borrowing Base Contributors, (ii) the other Australian Borrower and (iii) any
other Wholly-Owned Subsidiary of Australian Holdings that is a Guarantor and
whose designation as a "Borrowing Base Contributor" of such Australian Borrower
has been approved by the Administrative Agent in its sole discretion, exercised
commercially reasonably, and the Requisite Lenders.
"Burcher" means Burcher Pty. Limited, an Australian
incorporated company.
"Business Day" means a day of the year on which banks are not
required or authorized to close in
New York City and (a) if the applicable
Business Day relates to notices, determinations, fundings and payments in
connection with the Eurodollar Rate or any Eurodollar Rate Loans, a day on which
dealings in Dollar deposits are also carried on in the London interbank market
and (b) if the applicable Business Day relates to notices, determinations,
fundings and payments in Australian Dollars or by or to any Australian Borrower,
a day on which banks are also not required or authorized to close in Sydney,
Australia.
"Capital Expenditures" means, for any Person for any period,
the aggregate of amounts that would be reflected as additions to property, plant
or equipment on a Consolidated balance sheet of such Person and its Subsidiaries
and which should be capitalized under GAAP (or, for any of such Person and its
Subsidiaries that is an Australian Subsidiary, if applicable, Australian GAAP),
excluding interest capitalized during construction.
"Capital Lease" means, with respect to any Person, any lease
of, or other arrangement conveying the right to use, property by such Person as
lessee that would be accounted for as a capital lease on a balance sheet of such
Person prepared in conformity with GAAP (or, if such Person is an Australian
Subsidiary, if applicable, Australian GAAP).
"Capital Lease Obligations" means, with respect to any Person,
the capitalized amount of all Consolidated obligations of such Person or any of
its Subsidiaries under Capital Leases.
"Cash Collateral Account" means any Deposit Account or
Securities Account established by the Administrative Agent or the Australian
Agent in which cash and Cash Equivalents may from time to time be on deposit or
held therein in accordance with the provisions of this Agreement, the Pledge and
Security Agreement and the Australian Collateral Documents.
14
CREDIT AGREEMENT
SWIFT & COMPANY
"Cash Equivalents" means (a) securities issued or fully
guaranteed or insured by the United States federal government or any agency
thereof or the government of the Commonwealth of Australia or any government of
any state or territory of Australia, (b) certificates of deposit, eurodollar
time deposits, overnight bank deposits and bankers' acceptances of any
commercial bank organized under the laws of the United States, any state
thereof, the District of Columbia, any foreign bank, or its branches or agencies
(fully protected against currency fluctuations) that, at the time of
acquisition, are rated at least "A-1" by S&P or "P-1" by ▇▇▇▇▇'▇, (c) commercial
paper of an issuer rated at least "A-1" by S&P or "P-1" by ▇▇▇▇▇'▇ and (d)
shares of any money market fund that (i) has at least 95% of its assets invested
continuously in the types of investments referred to in clauses (a), (b) and (c)
above, (ii) has net assets the Dollar Equivalent of which is not less than
$500,000,000 and (iii) is rated at least "A-1" by S&P or "P-1" by ▇▇▇▇▇'▇;
provided, however, that the maturities of all obligations of the type specified
in clauses (a), (b) and (c) above shall not exceed 360 days.
"Cash Flow Period" means each of the following periods: (a)
the Fiscal Quarters ending after May 1, 2003 during the Fiscal Year ending in
calendar year 2003 and (b) each Fiscal Year thereafter.
"Cash Interest Expense" means, with respect to any Person for
any period, the Interest Expense of such Person for such period less the
Non-Cash Interest Expense of such Person for such period.
"Cash Management Document" means any certificate, agreement or
other document executed by any Loan Party in respect of the Cash Management
Obligations of any Loan Party.
"Cash Management Obligation" means, as applied to any Person,
any direct or indirect liability, contingent or otherwise, of such Person in
respect of cash management services (including treasury, depository, overdraft,
credit or debit card, electronic funds transfer and other cash management
arrangements) provided by any Agent or Lender or any Affiliate of any of them in
connection with this Agreement or any Loan Document (other than Cash Management
Documents), including obligations for the payment of fees, interest, charges,
expenses, attorneys' fees and disbursements in connection therewith.
"Cattle Feed Companies" means Swift Cattle Holdco, Inc., a
Delaware corporation and a Subsidiary of S&C 2, ▇▇▇▇▇▇▇ Finance Company, Inc., a
Colorado corporation and a Subsidiary of Swift Cattle Holdco, Inc., and Northern
Colorado Feed, LLC, a Colorado limited liability company and a Subsidiary of
▇▇▇▇▇▇▇ Finance Company, Inc.
"Cattle Supply Agreement" means the Cattle Supply Agreement
between certain Cattle Feed Companies and certain Loan Parties entered into on
the Closing Date in connection with the Acquisition.
"Change of Control" means the occurrence of any event,
transaction or occurrence as a result of which (a) the Permitted Investors shall
cease to have the power, directly or indirectly, to vote or direct the voting of
securities having a majority of the ordinary voting power for the election of
directors of Holdings; provided, however, that the occurrence of any such event
shall not be deemed an Event of Default as long as (i) prior to the consummation
of an initial public offering which generates Net Cash Proceeds to SFC or its
Subsidiaries the Dollar Equivalent of which is at least $100,000,000, (A) the
Permitted Investors have the right, directly
15
CREDIT AGREEMENT
SWIFT & COMPANY
or indirectly, to designate, and so designate, a majority of the board of
directors of Holdings or (B) the Permitted Investors own of record and
beneficially, directly or indirectly, more than 50% of the percentage ownership
of the common stock of Holdings (on a fully-diluted basis and adjusted on an
equitable basis for stock splits, stock dividends and similar events) that is
owned, directly or indirectly, by the Permitted Investors of record and
beneficially as of the Closing Date and such ownership by the Permitted
Investors represents the largest single block of voting securities of Holdings
directly or indirectly held by any "person" or "group" for purposes of Section
13(d) of the United States Securities Exchange Act of 1934 and (ii) thereafter,
(A) no "person" or "group" (as such terms are used in Sections 13(d) and 14(d)
of the United States Securities Exchange Act of 1934) other than the Permitted
Investors and the Seller and its Affiliates shall become the "beneficial owner"
(as defined in Rules 13(d)-3 and 13(d)-5 under the United States Securities
Exchange Act of 1934), directly or indirectly, of more than the greater of (x)
20% of the then outstanding Voting Stock of Holdings and (y) the percentage of
the then outstanding Voting Stock of Holdings owned, directly or indirectly, by
the Permitted Investors and (B) the board of directors of Holdings shall consist
of a majority of Continuing Directors of Holdings or (b) Holdings shall cease to
own and control all of the economic and voting rights associated with all of the
outstanding Stock of the Company.
"Change of Law" has the meaning specified in Section 2.14(c)
(Increased Costs).
"Citibank" means Citibank, N.A., a national banking
association.
"Citibank Australia" means Citibank, N.A. (Sydney Branch).
"Citicorp" has the meaning specified in the preamble to this
Agreement.
"Citisecurities" has the meaning specified in the preamble to
this Agreement.
"Closing Date" means the first date on which any Loan is made
or any Letter of Credit is Issued.
"Code" means the Internal Revenue Code of 1986.
"Collateral" means all property and interests in property and
proceeds thereof now owned or hereafter acquired by any Loan Party in or upon
which a Lien is granted under any Collateral Document.
"Collateral Documents" means the Pledge and Security
Agreement, the Australian Collateral Documents (including the Australian
Intercompany Collateral Documents), the Aircraft Security Documents, the U.S.
Mortgages, the Mexican Stock Pledge, each Japanese Stock Pledge, the Deposit
Account Control Agreements, the Control Account Agreements and any other
document executed and delivered by a Loan Party granting a Lien on any of its
property to secure payment of the Secured Obligations.
"Commitment" means, with respect to any Lender, such Lender's
Revolving Credit Commitment, if any, and Term Loan Commitment, if any, and
"Commitments" means the aggregate Revolving Credit Commitments and Term Loan
Commitments of all Lenders.
"Commodity Account" means a "commodity account" under and as
defined in the UCC.
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CREDIT AGREEMENT
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"Company" has the meaning specified in the preamble to this
Agreement.
"Company Mandatory Prepayment" has the meaning specified in
Section 2.9(d) (Mandatory Prepayments).
"Company's Accountants" means any independent
nationally-recognized public accountants acceptable to the Administrative Agent.
"Compensation Plan" means any program, plan or similar
arrangement (other than employment contracts for a single individual) relating
generally to compensation, pension, employment or similar arrangements to which
the Company, any of its Subsidiaries or any Affiliate or ERISA Affiliate of any
of them has any obligation or liability, contingent or otherwise, under any
Requirement of Law other than those of the United States.
"Compliance Certificate" has the meaning specified in Section
6.1(d) (Financial Statements).
"Consolidated" means, with respect to any Person, the
consolidation of accounts of such Person and its Subsidiaries in accordance with
GAAP.
"Consolidated Current Assets" means, with respect to any
Person at any date, the total Consolidated current assets (other than cash and
Cash Equivalents) of such Person and its Subsidiaries at such date.
"Consolidated Current Liabilities" means, with respect to any
Person at any date, all liabilities of such Person and its Subsidiaries at such
date that should be classified as current liabilities on a Consolidated balance
sheet of such Person and its Subsidiaries (including taxes accrued as
estimated), but excluding, in the case of the Company, the sum of (a) the
principal amount of any current portion of long-term Financial Covenant Debt and
(b) (without duplication of clause (a) above) the then outstanding principal
amount of the Loans.
"Consolidated Net Income" means, for any Person for any
period, the Consolidated net income (or loss) of such Person and its
Subsidiaries for such period plus, without duplication, nonrecurring
extraordinary or unusual items; provided, however, that (a) the net income of
any other Person in which such Person or one of its Subsidiaries has a joint
interest with a third party (which interest does not cause the net income of
such other Person to be Consolidated into the net income of such Person) shall
be included only to the extent of the amount of dividends or distributions paid
to such Person or Subsidiary, (b) the net income of any Subsidiary of such
Person that is subject to any restriction or limitation on the payment of
dividends or the making of other distributions shall be excluded to the extent
of such restriction or limitation and (c) nonrecurring extraordinary or unusual
gains and losses and any one-time increase or decrease to net income that is
required to be recorded because of the adoption of new accounting policies,
practices or standards required by GAAP shall be excluded, (d) any costs
relating to the Transactions that are required to be expensed under GAAP shall,
in each case, be excluded and (e) "Consolidated Net Income" of the Company
shall, to the extent such payments have not already been included therein as an
expense, be reduced by the amount of any payments made during such period by any
Loan Party pursuant to the Management Agreement or the Financial Advisory
Agreement.
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CREDIT AGREEMENT
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"Constituent Documents" means, with respect to any Person, (a)
the articles of incorporation, certificate of incorporation, constitution or
certificate of formation (or the equivalent organizational documents) of such
Person, (b) the by-laws, operating agreement (or the equivalent governing
documents) of such Person and (c) any document setting forth the manner of
election and duties of the directors or managing members of such Person (if any)
and the designation, amount or relative rights, limitations and preferences of
any class or series of such Person's Stock.
"Contaminant" means any material, substance or waste that is
classified, regulated or otherwise characterized under any Environmental Law as
hazardous, toxic, a contaminant or a pollutant or by other words of similar
meaning or regulatory effect, including any petroleum or petroleum-derived
substance or waste, asbestos and polychlorinated biphenyls.
"Continuing Directors" means, with respect to any Person, (a)
at any time during the first two years after the Closing Date, individuals who
are directors of such Person on the Closing Date (after giving effect to the
Transactions) or whose election by the board of directors of such Person or
whose nomination for election by the stockholders of such Person was approved by
a vote of at least a majority of individuals who were Continuing Directors as of
the time of such election and (b) at any time thereafter, individuals who, two
years prior to such time, were directors of such Person or whose election by the
Board of Directors of such Person or whose nomination for election by the
stockholders of such Person was approved by a vote of at least a majority of
individuals who were Continuing Directors as of the time of such election.
"Contractual Obligation" of any Person means any obligation,
agreement, undertaking or similar provision of any Security issued by such
Person or of any agreement, undertaking, contract, lease, indenture, mortgage,
deed of trust or other instrument (excluding a Loan Document) to which such
Person is a party or by which it or any of its property is bound or to which any
of its property is subject.
"Contribution Agreement" means the Contribution Agreement,
dated as of the Closing Date, among the Company, SFC, S&C 2 and Holdings.
"Control Account" means each Securities Account or Commodity
Account that is the subject of an effective Control Account Agreement for the
jurisdiction of such Securities Account or Commodity Account and that is
maintained by any Loan Party with an Approved Securities Intermediary. "Control
Account" includes, without limitation, all "financial assets" (under and as
defined in the UCC) held in a Securities Account or a Commodity Account and all
certificates and instruments, if any, representing or evidencing the "financial
assets" contained therein.
"Control Account Agreement" means (a) in respect of a Control
Account located in Australia, a mortgage of marketable securities and (b) in
respect of all other Control Accounts, a letter agreement, in each case in form
and substance satisfactory to the Administrative Agent executed by the relevant
Loan Party, the Administrative Agent and the relevant Approved Securities
Intermediary.
"Corporate Chart" means a corporate organizational chart or
other similar document in each case in form reasonably acceptable to the
Administrative Agent and setting forth, for each Person that is a Loan Party,
that is subject to Section 7.11 (Additional Collateral and Guaranties) or that
is a Subsidiary or Joint Venture of any of them, (a) the full legal name of
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CREDIT AGREEMENT
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such Person (and any trade name, fictitious name or other name such Person may
have had or operated under), (b) the jurisdiction of organization, the
organizational number (if any) and the tax identification number (if any) of
such Person, (c) the location of such Person's chief executive office (or sole
place of business) and (d) the number of shares of each class of such Person's
Stock authorized (if applicable), the number outstanding as of the date of
delivery, and the number and percentage of the outstanding shares of each such
class owned (directly or indirectly) by any Loan Party.
"Cost Indemnification Letter" means the letter, dated as of
September 3, 2002, among the Seller, Acquisition Co. and the Company regarding
indemnification of certain costs of the Acquired Businesses.
"Currency of Payment" has the meaning specified in Section
11.13 (Currency of Payment).
"Currency Thresholds" means (a) in the case of Obligations
denominated in Dollars, $2,000,000 and each integral multiple of $1,000,000 in
excess thereof and (b) in the case of Obligations denominated in Australian
Dollars, each integral multiple of A$500,000.
"Customary Permitted Liens" means, with respect to any Person,
any of the following Liens:
(a) Liens with respect to the payment of taxes, assessments or
governmental charges in each case that are not yet due or that are
being contested in good faith by appropriate proceedings and with
respect to which adequate reserves or other appropriate provisions are
being maintained to the extent required by GAAP;
(b) Liens of landlords arising by statute and liens of
suppliers, mechanics, carriers, materialmen, warehousemen or workmen
and other liens, pledges and deposits imposed by law created in the
ordinary course of business for amounts not yet overdue by 60 days or
more or that are being contested in good faith by appropriate
proceedings and with respect to which adequate reserves or other
appropriate provisions are being maintained to the extent required by
GAAP;
(c) deposits made in the ordinary course of business in
connection with workers' compensation, unemployment insurance or other
types of social security benefits or to secure the performance of bids,
tenders, sales, contracts (other than for the repayment of borrowed
money) and surety, appeal, customs or performance bonds;
(d) encumbrances arising by reason of zoning restrictions,
deed restrictions or reservations, easements, licenses, reservations,
covenants, rights-of-way, utility easements, building restrictions and
other similar encumbrances or Permits on the use of real property not
materially detracting from the value of such real property or not
materially interfering with the ordinary conduct of the business
conducted and proposed to be conducted at such real property;
(e) encumbrances arising under leases or subleases of real
property that are contractually subordinate to the Liens created by the
Loan Documents in form and substance satisfactory to the Administrative
Agent or do not, in the aggregate, materially
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CREDIT AGREEMENT
SWIFT & COMPANY
detract from the value of such real property or interfere with the
ordinary conduct of the business conducted and proposed to be conducted
at such real property;
(f) financing statements with respect to a lessor's rights in
and to personal property leased to such Person through a true lease in
the ordinary course of such Person's business; and
(g) any attachment or judgment Lien with respect to one or
more judgments or orders (or other similar process) involving, in the
case of money judgments, an aggregate amount (excluding any part
thereof covered by insurance) whose Dollar Equivalent (individually or
in the aggregate) does not exceed $5,000,000, unless (i) enforcement
proceedings shall have been commenced by any creditor upon any such
order or judgement or (ii) there shall be any period of 30 consecutive
days during which a stay of enforcement of any such judgment or order,
by reason of a pending appeal or otherwise, shall not be in effect.
"Debt Issuance" means the incurrence of Indebtedness of the
type specified in clause (a) or (b) of the definition of "Indebtedness" by
Holdings or any of its Subsidiaries.
"Default" means any event that, with the passing of time or
the giving of notice or both, would become an Event of Default.
"Deposit Account" means (a) each "Deposit Account" as defined
in the Pledge and Security Agreement and (b) each bank account and each other
"account" under and as defined in the Australian Financial Transaction Reports
Act of 1988 (Commonwealth of Australia).
"Deposit Account Bank" means a financial institution selected
or approved by the Administrative Agent and with respect to which a Loan Party
has duly executed and delivered to the Administrative Agent a legal, valid,
binding and enforceable Deposit Account Control Agreement.
"Deposit Account Control Agreement" means (a) a "Deposit
Account Control Agreement" under and as defined in the Pledge and Security
Agreement and (b) the equivalent Australian Cash Management Document.
"Disbursement Agent" means (a) in the case of Australian
Dollar Borrowings, repayment by any Loan Party of Australian Dollar Loans, the
Issuance of Letters of Credit from the Australian Lending Office of any Issuer,
repayment of Obligations owing to the Australian Agent or any Australian Dollar
Lender or owing by any Loan Party (but not any Lender or Issuer) to the
Australian Lending Office of any Issuer (and maintaining accounts, computation
of interest (including the rates thereof) and fees, determinations under Section
3.3 (Determinations of Initial Borrowing Conditions) and claims under Section
2.14 (Special Provisions Governing External Rate Loans) or Section 2.16 (Taxes)
in respect of such Borrowings, Loans, Obligations and Letters of Credit), and
Notices of Conversion or Continuation of Australian ▇▇▇▇ Rate Loans, the
Australian Agent and (b) otherwise, the Administrative Agent.
"Disclosure Documents" means, collectively, (a) the
confidential information memoranda and related materials prepared in connection
with syndication of the Facilities, (b) the
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CREDIT AGREEMENT
SWIFT & COMPANY
Senior Notes Offering Memorandum, and (c) on or after the issuance of any
Permitted Unsecured Indebtedness (other than the Senior Notes), any offering
memorandum (if any) in respect thereof.
"Documentary Letter of Credit" means any Letter of Credit
under which payments may be made by the Issuer to the beneficiary upon
presentation of documents evidencing the sale or shipment of goods purchased by
the Company or any of its Subsidiaries in the ordinary course of its business.
"Documentation Agent" has the meaning specified in the
preamble to this Agreement.
"Dollar" and the sign "$" (but not the sign "A$") each mean
the lawful money of the United States.
"Dollar Equivalent" of any amount means, at the time of
determination thereof, (a) if such amount is expressed in Dollars, such amount,
(b) if such amount is expressed in an Alternative Currency, the equivalent of
such amount in Dollars determined using the rate of exchange quoted by Citibank
in
New York,
New York at 11:00 a.m. (Local Time) on the date of determination
(or, if such date is not a Business Day, the last Business Day prior thereto) to
prime banks in
New York for the spot purchase in the New York foreign exchange
market of such amount of Dollars with such Alternative Currency and (c) if such
amount is denominated in any other currency, the equivalent of such amount in
Dollars as determined by the Administrative Agent using any method of
determination it deems appropriate.
"Dollar Revolving Credit Note" means (a) each promissory note
of the Company payable in Dollars to the order of any Revolving Credit Lender in
a principal amount equal to the amount of such Revolving Credit Lender's
Revolving Credit Commitment and evidencing the aggregate Indebtedness of the
Company to such Revolving Credit Lender resulting from the Revolving Dollar
Loans owing to such Revolving Credit Lender and (b) each note of either
Australian Borrower payable in Dollars in a principal amount equal to the amount
of such Revolving Credit Lender's Revolving Credit Commitment in relation to
which Australian Debentures may be issued as a result of the Revolving Dollar
Loans made to such Australian Borrower by such Revolving Credit Lender.
"Dollar Revolving Credit Facility" means the Revolving Credit
Commitments and the provisions herein related to the Revolving Dollar Loans,
Letters of Credit and Swing Loans.
"Domestic Guaranty" means the guaranty, in substantially the
form of Exhibit H-1 (Form of Domestic Guaranty), executed by the Subsidiaries of
the Company that are Domestic Subsidiaries.
"Domestic Lending Office" means, with respect to any Lender or
Issuer, the office of such Lender specified as its "Domestic Lending Office"
opposite its name on Schedule II (Applicable Lending Offices and Addresses for
Notices) or, in the case of a Lender, on the Assignment and Acceptance by which
it became a Lender or such other office of such Lender or Issuer as such Lender
or Issuer may from time to time specify to the Company and the Administrative
Agent.
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CREDIT AGREEMENT
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"Domestic Person" means any "United States person" under and
as defined in Section 7701(a)(30) of the Code.
"Domestic Subsidiary" means any Subsidiary of the Company
organized under the laws of any state of the United States or the District of
Columbia.
"Domestic Subsidiary Guarantor" means any Subsidiary Guarantor
that is a Domestic Person party to the Domestic Guaranty.
"EBITDA" means, with respect to any Person for any period, (a)
Consolidated Net Income of such Person for such period plus (b) the sum of, in
each case without duplication and to the extent included in the calculation of
such Consolidated Net Income, (i) any provision for income taxes, (ii) Interest
Expense, (iii) loss from nonrecurring extraordinary or unusual items, (iv)
depreciation, depletion and amortization expenses, (v) any aggregate net loss
from the sale, exchange or other disposition of capital assets by such Person,
(vi) any net decrease in Consolidated Net Income resulting solely from the
marking-to-market of open positions on contracts relating to lines of business
of the Loan Parties permitted hereunder, to the extent such net decrease is
required by the application of Statement of Financial Accounting Standards No.
133 (Accounting for Derivative Instruments and Hedging Activities) of the
Financial Accounting Standards Board (and any replacement or successor
statement) and (vii) all other non-cash charges and non-cash losses or
nonrecurring extraordinary or unusual items reducing Consolidated Net Income for
such period, including the amount of any compensation deduction as the result of
any grant prior to, on or after the Closing Date of Stock or Stock Equivalents
to employees, officers, directors or consultants and related expenses minus (c)
the sum of, in each case to the extent included in the calculation of such
Consolidated Net Income but without duplication, (i) any credit for income tax,
(ii) interest income, (iii) gains from nonrecurring extraordinary or unusual
items for such period, (iv) any aggregate net gain from the sale, exchange or
other disposition of capital assets by such Person, (v) any net increase in
Consolidated Net Income resulting solely from the marking-to-market of open
positions on contracts relating to lines of business of the Loan Parties
permitted hereunder to the extent such net increase is required by the
application of Statement of Financial Accounting Standards No. 133 (Accounting
for Derivative Instruments and Hedging Activities) of the Financial Accounting
Standards Board (and any replacement or successor statement) and (vi) any other
non-cash gains or other items which have been added in determining Consolidated
Net Income, including any reversal of a change referred to in clause (b)(vii)
above by reason of a decrease in the value of any Stock or Stock Equivalent.
"Eligibility Reserves" means, with respect to any Borrower,
the sum, without duplication, of (a) a reserve to account for potential claims
of livestock suppliers under the Packers and Stockyards Act of 1921 (taking into
account arrangements acceptable to the Administrative Agent to transfer the risk
of repayment of any surety bond issued for the benefit of such suppliers) and
(b) effective as of two Business Days after the date of written notice of any
determination thereof to the Company by the Administrative Agent, such amounts
as the Administrative Agent, in its sole discretion exercised reasonably and in
accordance with customary business practices for comparable asset-based
transactions, may from time to time establish against the gross amounts of
Eligible Receivables, Eligible Parts and Supplies, other Eligible Inventory,
Eligible Equipment and Eligible Real Property of such Borrower to reflect risks
or contingencies that may affect any one or more class of such items and that
have not already been taken into account in the calculation of the Borrowing
Base of such Borrower
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CREDIT AGREEMENT
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(including risks or contingencies that may affect the value of such items, the
ability of the Secured Parties to realize such value or the security interest of
the Secured Parties therein.
"Eligible Assignee" means (a) any Lender and any Affiliate or
Approved Fund of any Lender, (b) a commercial bank having total assets the
Dollar Equivalent of which is in excess of $5,000,000,000, (c) a finance
company, insurance company or any other financial institution or Fund, in each
case reasonably acceptable to the Administrative Agent and regularly engaged in
making, purchasing or investing in loans and having a net worth, determined in
accordance with GAAP, the Dollar Equivalent of which is in excess of
$250,000,000 (or, to the extent net worth is less than such amount, a finance
company, insurance company, other financial institution or Fund, reasonably
acceptable to the Administrative Agent and the Company) or (d) a savings and
loan association or savings bank organized under the laws of the United States
or any State thereof having a net worth, determined in accordance with GAAP, the
Dollar Equivalent of which is in excess of $250,000,000; provided, however, that
"Eligible Assignee" shall not include any Loan Party, any Affiliate thereof or
any Associate of any of them.
"Eligible Equipment" means, with respect to any Borrower, all
Equipment of such Borrower and each of its Borrowing Base Contributors located
in the United States (if such Borrower is the Company) or Australia (if such
Borrower is an Australian Borrower) (a) that is owned solely by such Borrower or
one of its Borrowing Base Contributors, (b) with respect to which the
Administrative Agent or the Australian Collateral Trustee has a valid, perfected
and enforceable first-priority Lien, (c) with respect to which no representation
or warranty contained in any Loan Document has been breached, (d) that is not,
in the Administrative Agent's sole discretion exercised commercially reasonably,
obsolete or unmerchantable and (e) that the Administrative Agent deems to be
Eligible Equipment, based on such credit and collateral considerations as the
Administrative Agent may, in its sole discretion exercised commercially
reasonably, deem appropriate.
"Eligible Inventory" means, with respect to any Borrower, all
Inventory of such Borrower and each of its Borrowing Base Contributors located
in the United States (if such Borrower is the Company) or Australia (if such
Borrower is an Australian Borrower) or is in a shipment from one such country to
the other (for any Borrower) (in each case, other than any Inventory that has
been consigned by such Borrower or one of its Borrowing Base Contributors)
including raw materials, work-in-process, finished goods, parts and supplies (a)
that is owned solely by such Borrower or one of its Borrowing Base Contributors,
(b) with respect to which the Administrative Agent or the Australian Collateral
Trustee, has a valid, perfected and enforceable first-priority Lien, (c) with
respect to which no representation or warranty contained in any Loan Document
has been breached, (d) which is not, in the Administrative Agent's sole
discretion exercised commercially reasonably, obsolete or unmerchantable, (e)
with respect to which (in respect of any Inventory labeled with a brand name or
trademark and sold by such Borrower or one of its Borrowing Base Contributors
pursuant to a trademark owned by such Borrower or one of its Borrowing Base
Contributors or a license granted to such Borrower or one of its Borrowing Base
Contributors) the Administrative Agent would have rights under such trademark or
license pursuant to the Collateral Documents to sell such Inventory in
connection with a liquidation thereof and (f) that the Administrative Agent
deems to be Eligible Inventory based on such credit and collateral
considerations as the Administrative Agent may, in its sole discretion exercised
commercially reasonably, deem appropriate. No Inventory of such Borrower or any
of its Borrowing Base Contributors shall be Eligible Inventory if such Inventory
consists of (i) goods returned or rejected by customers other than goods that
are undamaged or are resaleable in the
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CREDIT AGREEMENT
SWIFT & COMPANY
normal course of business, (ii) goods to be returned to suppliers, (iii)
by-products, (iv) aged products, (v) ingredients, (vi) fuel, (vii) chemicals,
(viii) inventory at closed facilities or (ix) goods located, stored, used or
held at the premises of a third party unless, in the case of this clause (ix),
(A)(1) the Administrative Agent or the Australian Collateral Trustee shall have
received a Landlord Waiver or Bailee's Letter or (2) in the case of Inventory
located at a leased premises, an Eligibility Reserve satisfactory to the
Administrative Agent shall have been established with respect thereto and (B) if
applicable, an appropriate UCC-1 financing statement (or other required
perfection document) shall have been executed and properly filed in respect
thereto.
"Eligible Parts and Supplies" means Eligible Inventory of the
Company consisting of packaging, spare parts or supplies located in the United
States and classified as such on the Company's (or any of its Borrowing Base
Contributor's) accounting system; provided, however, that "Eligible Parts and
Supplies" shall not include any perishable good or "food products" under and as
defined in the UCC.
"Eligible Real Property" means, with respect to any Borrower
at any time, any parcel of Real Property owned by such Borrower or any of its
Borrowing Base Contributors, located in the United States (if such Borrower is
the Company) or Australia (if such Borrower is an Australian Borrower) and as to
which each of the following conditions is satisfied at such time:
(a) (i) a valid and enforceable first-priority Lien on such
parcel of Real Property (subject to Customary Permitted Liens and other
Liens approved by the Administrative Agent) shall have been granted by
such Borrower or one of its Borrowing Base Contributors in favor of the
Administrative Agent pursuant to a Mortgage in form and substance
satisfactory to the Administrative Agent and (ii) such Lien shall be in
full force and effect in favor of the Administrative Agent;
(b) if such parcel of Real Property is located in the United
States, the Administrative Agent (and, where applicable, the relevant
title insurance company) shall have received in form reasonably
satisfactory to it all U.S. Mortgage Supporting Documents in respect of
such parcel of Real Property;
(c) if such parcel of Real Property is located in Australia,
the Administrative Agent and the Australian Collateral Trustee shall
have received in form reasonably satisfactory to each of them all
Australian Mortgage Supporting Documents in respect of such parcel of
Real Property;
(d) the Administrative Agent shall have received an Appraisal
with respect to such parcel of Real Property;
(e) no casualty shall have occurred materially affecting the
use, operation or value of such parcel of Real Property if such
casualty has not been restored or repaired by the mortgagor under the
Mortgage encumbering such parcel of Real Property;
(f) no material condemnation or taking by eminent domain shall
have occurred nor shall any notice of any pending or threatened
condemnation or other proceeding against such parcel of Real Property
been delivered to the owner or lessee of such parcel of Real Property
that would materially affect the use, operation or value of such; and
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CREDIT AGREEMENT
SWIFT & COMPANY
(g) the mortgagor under the relevant Mortgage encumbering such
parcel of Real Property shall comply in all material respects with the
terms of such Mortgage.
"Eligible Receivable" means, with respect to any Borrower, the
gross outstanding balance of each Account of such Borrower and each of its
Borrowing Base Contributors arising out of the sale of merchandise, goods or
services in the ordinary course of business, that is made by such Borrower or
one of its Borrowing Base Contributors that constitutes Collateral in which the
Administrative Agent or the Australian Collateral Trustee has a valid, perfected
and enforceable first-priority Lien; provided, however, that an Account shall
not be an "Eligible Receivable" if any of the following shall be true:
(a) (i) such Account is more than 30 days past due according
to the original terms of sale or (ii) 90 days past the original invoice
date thereof; or
(b) any warranty contained in this Agreement or any other Loan
Document with respect to such specific Account is not true and correct
with respect to such Account; or
(c) the Account Debtor on such Account has disputed liability
or made any claim with respect to any other Account due from such
Account Debtor to such Borrower, such Borrowing Base Contributor or any
Subsidiary of any of them but only to the extent of such dispute or
claim; or
(d) the Account Debtor on such Account has (i) filed a
petition for bankruptcy, liquidation, winding-up or any other relief
under the Bankruptcy Code or the Australian Corporations Act or any
other law relating to bankruptcy, insolvency, reorganization or relief
of debtors, (ii) made an assignment for the benefit of creditors, (iii)
had filed against it any petition or other application for relief under
the Bankruptcy Code or the Australian Corporations Act or any such
other law, (iv) has failed, suspended business operations, become
insolvent, called a meeting of its creditors for the purpose of
obtaining any financial concession or accommodation or (v) had or
suffered a receiver or a trustee to be appointed for all or a
significant portion of its assets or affairs; or
(e) the Account Debtor on such Account or any of its
Affiliates is also a supplier to or creditor of such Borrower, such
Borrowing Base Contributor or any Subsidiary of any of them, unless
such supplier or creditor has executed a no-offset letter satisfactory
to the Administrative Agent, in its sole discretion exercised
commercially reasonably;
(f) the Account Debtor on such Account is a Person that is an
Affiliate of such Borrower or such Borrowing Base Contributor (other
than Accounts owing by ConAgra, Inc. or any of its Subsidiaries); or
(g) the sale represented by such Account is to an Account
Debtor located outside the United States, Australia and Canada, unless
the sale is on letter of credit or acceptance terms acceptable to the
Administrative Agent, in its sole discretion exercised commercially
reasonably; or
(h) the sale to such Account Debtor on such Account is on a
▇▇▇▇-on-hold, guaranteed sale, sale-and-return, cash-on-delivery sale,
sale-on-approval or consignment basis or on other terms by reason of
which the payment by the Account Debtor may be conditional; or
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CREDIT AGREEMENT
SWIFT & COMPANY
(i) such Account is subject to a Lien in favor of any Person
other than the Administrative Agent for the benefit of the Secured
Parties or the Australian Collateral Trustee; or
(j) such Account is subject to any deduction, offset,
counterclaim, return privilege or other conditions other than volume
sales discounts given in the ordinary course of such Borrower's or such
Borrowing Base Contributor's business, to the extent such volume sales
discounts have been applied to such Account in all Borrowing Base
Certificates delivered hereunder and including such Account; provided,
however, that such Account shall be ineligible pursuant to this clause
(j) only to the extent of such deduction, offset, counterclaim, return
privilege or other condition; or
(k) the goods sold or services rendered with respect to such
Account were sold or rendered to such Account Debtor in a State of the
United States requiring the owner of such Account, as a precondition to
commencing or maintaining any action in the courts of such State either
to (i) receive a certificate of authorization to do business in such
State or be in good standing in such State or (ii) file a Notice of
Business Activities Report with the appropriate office or agency of
such State, in each case unless the holder of such Account has received
such a certificate of authority to do business, is in good standing or,
as the case may be, has duly filed such a notice in such State; or
(l) the Account Debtor on such Account is a United States
Governmental Authority, unless such Borrower or such Borrowing Base
Contributor has assigned its rights to payment of such Account to the
Administrative Agent pursuant to the Assignment of Claims Act of 1940,
as amended, in the case of a federal Governmental Authority, and
pursuant to applicable law, if any, in the case of any other
Governmental Authority, and such assignment has been accepted and
acknowledged by the appropriate government officers; or
(m) 50% or more of the outstanding Accounts of the Account
Debtor have become, or have been determined by the Administrative
Agent, in accordance with the provisions hereof, to be, ineligible; or
(n) the sale represented by such Account is denominated in a
currency other than Dollars, in the case of the Company and its
Borrowing Base Contributors or Dollars and Australian Dollars in the
case of any Australian Borrower and its Borrowing Base Contributors; or
(o) such Account is not evidenced by an invoice or other
writing in form acceptable to the Administrative Agent, in its sole
discretion exercised commercially reasonably; or
(p) such Borrower or such Borrowing Base Contributor, in order
to be entitled to collect such Account, is required to perform any
additional service for, or perform or incur any additional obligation
to, the Person to whom or to which it was made; or
(q) (i) the total Accounts of such Account Debtor to such
Borrower and its Borrowing Base Contributors (excluding, in the case of
the Australian Borrowers, the Company and its Borrowing Base
Contributors) represent more than 20% of the Eligible Receivables of
such Borrower and its Borrowing Base Contributors at such time, but
only
26
CREDIT AGREEMENT
SWIFT & COMPANY
to the extent of such excess or (ii) the total Accounts of such Account
Debtor to the Borrowers and their Borrowing Base Contributors represent
more than 20% of the Eligible Receivables of the Borrowers and their
Borrowing Base Contributors but only to the extent of such excess;
(r) the Borrower's or Borrowing Base Contributor's right to
receive payment of such Account is not absolute or is contingent;
(s) the Borrower or the Borrowing Base Contributor cannot
bring suit or otherwise enforce its remedies against the Account Debtor
through judicial process; or
(t) the Administrative Agent, in accordance with its customary
criteria, determines, in its sole discretion exercised commercially
reasonably, that such Account might not be paid or is otherwise
ineligible.
"Environmental Laws" means all applicable Requirements of Law
now or hereafter in effect and as amended or supplemented from time to time,
relating to (a) the carrying out of uses, works or development or the
subdivision of land, (b) the emission of substances into the environment,
pollution or contamination, (c) production, use, handling, storage,
transportation or disposal of waste, hazardous substances and dangerous goods,
(d) conservation, heritage or natural resources, (e) threatened or endangered
flora and fauna or (f) the regulation and protection of human or animal health,
safety, the environment or natural resources, including the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, as amended (42
U.S.C. Section 9601 et seq.); the Hazardous Material Transportation Act, as
amended (49 U.S.C. Section 1801 et seq.); the Federal Insecticide, Fungicide,
and Rodenticide Act, as amended (7 U.S.C. Section 136 et seq.); the Resource
Conservation and Recovery Act, as amended (42 U.S.C. Section 6901 et seq.); the
Toxic Substance Control Act, as amended (42 U.S.C. Section 7401 et seq.); the
Clean Air Act, as amended (42 U.S.C. Section 740 et seq.); the Federal Water
Pollution Control Act, as amended (33 U.S.C. Section 1251 et seq.); the
Occupational Safety and Health Act, as amended (29 U.S.C. Section 651 et seq.);
the Safe Drinking Water Act, as amended (42 U.S.C. Section 300f et seq.); and
each of their state and local counterparts or equivalents and any transfer of
ownership notification or approval statute, including the Industrial Site
Recovery Act (N.J. Stat. ▇▇▇. Section 13:1K-6 et seq.).
"Environmental Liabilities and Costs" means, with respect to
any Person, all liabilities, obligations, responsibilities, Remedial Actions,
losses, damages, punitive damages, consequential damages, treble damages, costs
and expenses (including all fees, disbursements and expenses of counsel, experts
and consultants and costs of investigation and feasibility studies), fines,
penalties, sanctions and interest incurred as a result of any claim or demand by
any other Person, whether based in contract, tort, implied or express warranty,
strict liability, criminal or civil statute and whether arising under any
Environmental Law, Permit, order or agreement with any Governmental Authority or
other Person, in each case relating to any environmental, health or safety
condition or to any Release or threatened Release and resulting from the past,
present or future operations of, or ownership of property by, such Person or any
of its Subsidiaries.
"Environmental Lien" means any Lien in favor of any
Governmental Authority for Environmental Liabilities and Costs.
"Environmental Reports" means the reports identified on
Schedule 4.18 (Environmental Matters).
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CREDIT AGREEMENT
SWIFT & COMPANY
"Equipment" (a) in respect of "Equipment" of any Australian
Subsidiary, equipment, plant and machinery of such Australian Subsidiary and (b)
otherwise, has the meaning specified in the Pledge and Security Agreement.
"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, S&C 2 or Holdings by
Acquisition Co., SFC or S&C 2 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
Sock 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 and (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 at or prior to the date of determination to the capital of the
Company.
"ERISA" means the United States Employee Retirement Income
Security Act of 1974.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) under common control or treated as a single employer with the
Company or any of its Subsidiaries within the meaning of Section 414(b), (c),
(m) or (o) of the Code.
"ERISA Event" means (a) a reportable event described in
Section 4043(b) or 4043(c)(1), (2), (3), (5), (6), (8) or (9) of ERISA with
respect to a Title IV Plan or a Multiemployer Plan, (b) the withdrawal of the
Company, any of its Subsidiaries or any ERISA Affiliate from a Title IV Plan
subject to Section 4063 of ERISA during a plan year in which it was a
substantial employer, as defined in Section 4001(a)(2) of ERISA, (c) the
complete or partial withdrawal of the Company, any of its Subsidiaries or any
ERISA Affiliate from any Multiemployer Plan, (d) notice of reorganization or
insolvency of a Multiemployer Plan, (e) the filing of a notice of intent to
terminate a Title IV Plan or the treatment of a plan amendment as a termination
under Section 4041 of ERISA, (f) the institution of proceedings to terminate a
Title IV Plan or Multiemployer Plan by the PBGC, (g) the failure to make any
required contribution to a Title IV Plan or Multiemployer Plan, (h) the
imposition of a lien under Section 412 of the Code or Section 302 of ERISA on
the Company or any of its Subsidiaries or any ERISA Affiliate or (i) any other
event or condition that might reasonably be expected to constitute grounds under
Section 4042 of ERISA for the termination of, or the appointment of a trustee to
administer, any Title IV Plan or Multiemployer Plan or the imposition of any
liability under Title IV of ERISA, other than for PBGC premiums due but not
delinquent under Section 4007 of ERISA.
"Eurocurrency Liabilities" has the meaning assigned to that
term in Regulation D of the Federal Reserve Board.
"Eurodollar Base Rate" means, with respect to any Interest
Period for any Eurodollar Rate Loan, the rate determined by the Administrative
Agent to be the offered rate for
28
CREDIT AGREEMENT
SWIFT & COMPANY
deposits in Dollars for the applicable Interest Period appearing on the
Reference Screen as of 11:00 a.m., Local Time, on the second full Business Day
next preceding the first day of each Interest Period. In the event that no
Reference Screen shall be available, the Eurodollar Base Rate shall be the rate
of interest determined by the Administrative Agent to be the rate per annum at
which deposits in Dollars are offered by the principal office of Citibank in
London to major banks in the London interbank market at 11:00 a.m. (Local Time)
two Business Days before the first day of such Interest Period in an amount
substantially equal to such Eurodollar Rate Loan for a period equal to such
Interest Period.
"Eurodollar Lending Office" means, with respect to any Lender
or Issuer, the office of such Lender or Issuer specified as its "Eurodollar
Lending Office" opposite its name on Schedule II (Applicable Lending Offices and
Addresses for Notices) or, in the case of a Lender, on the Assignment and
Acceptance by which it became a Lender (or, if no such office is specified, its
Domestic Lending Office) or such other office of such Lender or Issuer as such
Lender or Issuer may from time to time specify to the Company and the
Administrative Agent.
"Eurodollar Rate" means, with respect to any Interest Period
for any Eurodollar Rate Loan, an interest rate per annum equal to the rate per
annum obtained by dividing (a) the Eurodollar Base Rate by (b)(i) a percentage
equal to 100% minus (ii) the reserve percentage applicable two Business Days
before the first day of such Interest Period under regulations issued from time
to time by the Federal Reserve Board for determining the maximum reserve
requirement (including any emergency, supplemental or other marginal reserve
requirement) for a member bank of the Federal Reserve System in New York City
with respect to liabilities or assets consisting of or including Eurocurrency
Liabilities (or with respect to any other category of liabilities that includes
deposits by reference to which the Eurodollar Rate is determined) having a term
equal to such Interest Period.
"Eurodollar Rate Loan" means any Loan that, for an Interest
Period, bears interest based on the Eurodollar Rate.
"Event of Default" has the meaning specified in Section 9.1
(Events of Default).
"Excess Cash 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
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CREDIT AGREEMENT
SWIFT & COMPANY
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), but 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 (viii)
Cash Interest Expense of the Company and its Subsidiaries during such Cash Flow
Period.
"External Rate" means each of the Fixed Rates and the
Australian Short-Term Rate.
"External Rate Loan" means any Australian Short-Term Loan and
any Fixed Rate Loan.
"FAA" means the U.S. Federal Aviation Administration.
"Facilities" means the Term Loan Facility and the Revolving
Credit Facility (and, as applicable, the Australian Dollar Subfacility).
"Fair Market Value" means (a) with respect to any asset or
group of assets (other than a marketable Security) at any date, the value of the
consideration obtainable in a sale of such asset at such date assuming a sale by
a willing seller to a willing purchaser dealing at arm's length and arranged in
an orderly manner over a reasonable period of time having regard to the nature
and characteristics of such asset, as reasonably determined by the Board of
Directors of the Company or, if such asset shall have been the subject of a
relatively contemporaneous appraisal by an independent third party appraiser,
the basic assumptions underlying which have not materially changed since its
date, the value set forth in such appraisal and (b) with respect to any
marketable Security at any date, the closing sale price of such Security on the
Business Day next preceding such date, as appearing in any published list of any
national securities exchange or the NASDAQ Stock Market or, if there is no such
closing sale price of such Security, the final price for the purchase of such
Security at face value quoted on such business day by a financial institution of
recognized standing regularly dealing in securities of such type and selected by
the Administrative Agent.
"Federal Funds Rate" means, for any period, a fluctuating
interest rate per annum equal for each day during such period to the weighted
average of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers, as published for such
day (or, if such day is not a Business Day, for the next preceding Business Day)
by the Federal Reserve Bank of New York, or, if such rate is not so published
for any day that is a Business Day, the average of the quotations for such day
on such transactions received by the Administrative Agent from three Federal
funds brokers of recognized standing selected by it.
"Federal Reserve Board" means the Board of Governors of the
United States Federal Reserve System, or any successor thereto.
"Fee Letter" shall mean the amended and restated fee letter,
dated as of September 3, 2002, addressed to Acquisition Co. from Citicorp,
JPMorgan and the Arrangers, accepted by Acquisition Co. on September 3, 2002 and
assigned to the Company on the Closing
30
CREDIT AGREEMENT
SWIFT & COMPANY
Date, with respect to certain fees to be paid from time to time to Citicorp,
JPMorgan and the Arrangers.
"Financial Accounting Standards Board" means the United States
Financial Accounting Standards Board, and any successor or replacement entity.
"Financial Advisory Agreement" means the financial advisory
agreement, dated as of the Closing Date, between the Company, its Subsidiaries,
Holdings, SFC, S&C 2 and ▇▇▇▇▇, Muse & Co. Partners.
"Financial Covenant Debt" of any Person means Indebtedness of
the type specified in clauses (a), (b), (d), (e), (f) and (h) of the definition
of "Indebtedness" and non-contingent obligations of the type specified in clause
(c) of such definition.
"Financial Statements" means the financial statements of the
Company and its Subsidiaries delivered in accordance with Sections 4.4
(Financial Statements) and 6.1 (Financial Statements).
"Fiscal Quarter" means each of the three month periods ending
on the Sunday immediately preceding May 31, August 31, November 30 and February
28.
"Fiscal Year" means (a) if the Company does not change its
fiscal year to August 31 prior to May 31, 2003 as permitted under Section 8.14
(Accounting Changes; Fiscal Year), the twelve month periods ending on the Sunday
immediately preceding May 31 and (b) otherwise, any of (i) the period starting
on the Closing Date and ending on the Sunday immediately preceding August 31,
2003 and (ii) the twelve month periods thereafter ending on the Sunday
immediately preceding August 31.
"Fixed Asset Borrowing Base" means, for any Borrower at any
time, the amount, if any, by which (a) the lesser of (i) the sum of each portion
of the Amortized Value of the Fixed Asset Sublimit allocated at such time to
such Borrower or any of its Borrowing Base Contributors by the Administrative
Agent after consultation with the Syndication Agent and (ii) the Fixed Asset
Value of such Borrower at such time exceeds (b) the Dollar Equivalent of the
Permanent Mandatory Prepayments of such Borrower at such time.
"Fixed Asset Sublimit" means $110,000,000.
"Fixed Asset Value" means, at any time with respect to any
Borrower, the sum of (a) the lesser of (i) up to 75% of the Dollar Equivalent of
the Loan Value at such time of Eligible Equipment of such Borrower determined by
reference to the Initial Appraisals and (ii) up to 75% of the Dollar Equivalent
of the Loan Value at such time of Eligible Equipment of such Borrower determined
by reference to the most recent Updated Appraisal, if applicable and (b) the
lesser of (i) up to 50% of the Dollar Equivalent of the Loan Value at such time
of Eligible Real Property of such Borrower determined by reference to the
Initial Appraisals and (ii) up to 50% of the Dollar Equivalent of the Loan Value
at such time of the Eligible Real Property of such Borrower determined by
reference to the most recent Updated Appraisal, if applicable.
"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
31
CREDIT AGREEMENT
SWIFT & COMPANY
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 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.
"Fixed Charge Coverage Ratio" means, with respect to any
Person for any period, the ratio of (a) Consolidated Adjusted EBITDA of such
Person for such period minus Capital Expenditures of such Person for such period
minus the total federal income tax liability actually payable by such Person in
respect of such period to (b) the Fixed Charges of such Person for such period.
"Fixed Rate" means (a) with respect to Eurodollar Rate Loans,
the Eurodollar Rate and (b) with respect to Australian ▇▇▇▇ Rate Loans, the
Australian ▇▇▇▇ Rate.
"Fixed Rate Loan" means each Eurodollar Rate Loan and
Australian ▇▇▇▇ Rate Loan.
"Fund" means any Person (other than a natural Person) that is
or will be engaged in making, purchasing, holding or otherwise investing in
commercial loans and similar extensions of credit in the ordinary course of its
business.
"GAAP" means generally accepted accounting principles in the
United States as in effect from time to time set forth in the opinions and
pronouncements of the Accounting Principles Board and the American Institute of
Certified Public Accountants and the statements and pronouncements of the
Financial Accounting Standards Board, or in such other statements by such other
entity as may be in general use by significant segments of the accounting
profession, that are applicable to the circumstances as of the date of
determination.
"Garden City Insurance Claim" means the aggregate claim of the
Seller and all of its Subsidiaries arising out of the December 25, 2000 fire at
the beef plant in Garden City, Kansas, associated with all coverage provisions
of the all risk policy maintained by the Seller in force at the time of such
loss and including claims for business interruption, property damages and costs
and expenses.
"GECC" has the meaning specified in the preamble to this
Agreement.
"General Intangible" has the meaning specified in the Pledge
and Security Agreement.
"Governmental Authority" means any nation, sovereign or
government, any state or other political subdivision thereof and any entity or
authority exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government, including any central
bank or stock exchange.
"Government Bank Guarantee" means any bank guarantee that (a)
is a Letter of Credit issued from the Australian Lending Office of any Issuer
for the account of any Australian Borrower, (b) is issued for the benefit of any
Australian Governmental Authority acceptable to the Australian Agent, (c) may be
terminated by the Issuer thereof at any time by such Issuer making full or
partial payment to the beneficiary thereunder (and which contains language
32
CREDIT AGREEMENT
SWIFT & COMPANY
reasonably acceptable to the Issuer to such effect) and (d) is on terms and
conditions reasonably satisfactory to the Issuer thereof and the Australian
Agent.
"GST" has the meaning given to such term in Australia's A New
Tax System (Goods and Services Tax) ▇▇▇ ▇▇▇▇ (Commonwealth of Australia).
"Guarantor" means each of Holdings and each Subsidiary
Guarantor.
"Guaranty" means each of the Domestic Guaranty and the
Non-U.S. Guaranty.
"Guaranty Obligation" means, as applied to any Person, any
direct or indirect liability, contingent or otherwise, of such Person with
respect to any Indebtedness of another Person, if the purpose or intent of such
Person in incurring the Guaranty Obligation is to provide assurance to the
obligee of such Indebtedness that such Indebtedness will be paid or discharged,
that any agreement relating thereto will be complied with, or that any holder of
such Indebtedness will be protected (in whole or in part) against loss in
respect thereof, including (a) the direct or indirect guaranty, endorsement
(other than for collection or deposit in the ordinary course of business),
co-making, discounting with recourse or sale with recourse by such Person of
Indebtedness of another Person and (b) any liability of such Person for
Indebtedness of another Person through any agreement (contingent or otherwise)
(i) to purchase, repurchase or otherwise acquire such Indebtedness or any
security therefor or to provide funds for the payment or discharge of such
Indebtedness (whether in the form of a loan, advance, stock purchase, capital
contribution or otherwise), (ii) to maintain the solvency or any balance sheet
item, level of income or financial condition of another Person, (iii) to make
take-or-pay or similar payments, if required, regardless of non-performance by
any other party or parties to an agreement, (iv) to purchase, sell or lease (as
lessor or lessee) property, or to purchase or sell services, primarily for the
purpose of enabling the debtor to make payment of such Indebtedness or to assure
the holder of such Indebtedness against loss or (v) to supply funds to, or in
any other manner invest in, such other Person (including to pay for property or
services irrespective of whether such property is received or such services are
rendered), if in the case of any agreement described under clause (b)(i), (ii),
(iii), (iv) or (v) above the primary purpose or intent thereof is to provide
assurance that Indebtedness of another Person will be paid or discharged, that
any agreement relating thereto will be complied with or that any holder of such
Indebtedness will be protected (in whole or in part) against loss in respect
thereof. The amount of any Guaranty Obligation shall be equal to the amount of
the Indebtedness so guaranteed or otherwise supported.
"Hedging Contracts" means all Interest Rate Contracts, foreign
exchange contracts, currency swap or option agreements, forward contracts,
commodity swap, purchase or option agreements, other commodity price hedging
arrangements and all other similar agreements or arrangements designed to alter
the risks of any Person arising from fluctuations in interest rates, currency
values or commodity prices.
"▇▇▇▇▇, Muse" means Hicks, Muse, ▇▇▇▇ & ▇▇▇▇▇, Incorporated, a
Texas corporation.
"▇▇▇▇▇, Muse & Co. Partners" means ▇▇▇▇▇, Muse & Co. Partners,
L.P., a Texas limited partnership.
"Holdings" has the meaning specified in the preamble to this
Agreement.
33
CREDIT AGREEMENT
SWIFT & COMPANY
"Hyrum Lease" means the lease agreement, by and between the
Seller and Swift Beef Company, a Delaware corporation and a Subsidiary of the
Company, dated on or about the Closing Date, in respect of Real Property in
Hyrum, Utah.
"Indebtedness" of any Person means without duplication (a) all
indebtedness of such Person for borrowed money, (b) all obligations of such
Person evidenced by notes, bonds, debentures or similar instruments, (c) all
reimbursement and all obligations with respect to letters of credit, bankers'
acceptances, surety bonds and performance bonds, whether or not matured, (d) all
indebtedness for the deferred purchase price of property or services, other than
trade payables incurred and accrued expenses arising in the ordinary course of
business that are not overdue, (e) all indebtedness of such Person created or
arising under any conditional sale or other title retention agreement with
respect to property acquired by such Person (even though the rights and remedies
of the seller or lender under such agreement in the event of default are limited
to repossession or sale of such property), (f) all Capital Lease Obligations of
such Person and the present value of future rental payments under all synthetic
leases, (g) all Guaranty Obligations of such Person, (h) all obligations of such
Person to purchase, redeem, retire, defease or otherwise acquire for value any
Stock or Stock Equivalents of such Person, valued, in the case of redeemable
preferred stock, at the greater of its voluntary liquidation preference and its
involuntary liquidation preference plus accrued and unpaid dividends, (i) all
payments that such Person would have to make in the event of an early
termination on the date Indebtedness of such Person is being determined in
respect of Hedging Contracts of such Person and (j) all Indebtedness of the type
referred to above secured by (or for which the holder of such Indebtedness has
an existing right, contingent or otherwise, to be secured by) any Lien upon or
in property (including Accounts and General Intangibles) owned by such Person,
even though such Person has not assumed or become liable for the payment of such
Indebtedness.
"Indemnified Matter" has the meaning specified in Section 11.4
(Indemnities).
"Indemnitee" has the meaning specified in Section 11.4
(Indemnities).
"Initial Appraisals" means the appraisals of all Inventory,
Accounts, Real Property and Equipment of each Borrower and each of its Borrowing
Base Contributors received by the Administrative Agent prior to the Closing Date
and made available by the Administrative Agent to prospective Lenders by posting
on an Intralinks Internet web site at various times in June and July 2002.
"Interbank Rate" means, for any period, (a) in respect of
amounts payable in Australian Dollars, the Australian Short-Term Rate and (b) in
respect of all other amounts, the Federal Funds Rate for such period.
"Interest Coverage Ratio" means, with respect to any Person
for any period, the ratio of (a) Consolidated Adjusted EBITDA of such Person for
such period to (b) Annualized Cash Interest Expense of such Person for such
period.
"Interest Expense" means, for any Person for any period, (a)
Consolidated total interest expense of such Person and its Subsidiaries for such
period and including, in any event, interest capitalized during such period and
net costs under Interest Rate Contracts for such period (but in any event not
including non-cash interest expense on the Seller Note) minus (b) Consolidated
net gains of such Person and its Subsidiaries under Interest Rate Contracts for
34
CREDIT AGREEMENT
SWIFT & COMPANY
such period and minus (c) any Consolidated interest income of such Person and
its Subsidiaries for such period.
"Interest Period" means, in the case of any Fixed Rate Loan,
(a) initially, the period commencing on the date such Fixed Rate Loan is made or
on the date of conversion of a Loan to such Fixed Rate Loan and ending (i) in
the case of a Eurodollar Rate Loan, one, two, three or six months thereafter
(or, if deposits of such duration are available to all Lenders (as determined,
with respect to each Lender, by such Lender in its sole discretion), ending nine
or twelve months thereafter) and (ii) in the case of an Australian ▇▇▇▇ Rate
Loan, one, two, three, four, five or six months thereafter, as selected by a
Borrower in its Notice of Borrowing or Notice of Conversion or Continuation
given to the Administrative Agent or the Australian Agent pursuant to Section
2.2 (Borrowing Procedures) or 2.11 (Conversion and Continuation) and (b)
thereafter, if such Fixed Rate Loan is continued, in whole or in part, as a
Fixed Rate Loan in the same currency pursuant to Section 2.11 (Conversion and
Continuation), a period commencing on the last day of the immediately preceding
Interest Period therefor and ending (i) in the case of a Eurodollar Rate Loan,
one, two, three or six months thereafter (or, if deposits of such duration are
available to all Lenders (as determined, with respect to each Lender, by such
Lender in its sole discretion), ending nine or twelve months thereafter) and
(ii) in the case of an Australian ▇▇▇▇ Rate Loan, one, two, three, four, five or
six months thereafter, as selected by the Borrower therefor in its Notice of
Conversion or Continuation given to the Administrative Agent or the Australian
Agent pursuant to Section 2.11 (Conversion and Continuation); provided, however,
that all of the foregoing provisions relating to Interest Periods in respect of
Fixed Rate Loans are subject to the following:
(i) if any Interest Period would otherwise end on a
day that is not a Business Day, such Interest Period shall be
extended to the next succeeding Business Day in the same
calendar month or, if no such Business Day exists, on the
immediately preceding Business Day;
(ii) any Interest Period that begins on the last
Business Day of a calendar month (or on a day for which there
is no numerically corresponding day in the calendar month at
the end of such Interest Period) shall end on the last
Business Day of a calendar month;
(iii) no Borrower may select any Interest Period that
ends after the date of a scheduled principal payment on the
Loans as set forth in Article II (The Facilities) unless,
after giving effect to such selection, the aggregate unpaid
principal amount of the Loans for which Interest Periods end
after such scheduled principal payment shall be equal to or
less than the principal amount to which the Loans are required
to be reduced after such scheduled principal payment is made;
(iv) no Borrower may select any Interest Period in
respect of Loans having an aggregate principal amount that is
not equal to a Currency Threshold for the currency in which
such Loans are denominated; and
(v) there shall be outstanding at any one time no
more than eight Interest Periods in the aggregate in respect
of Eurodollar Rate Loans and eight Interest Periods in the
aggregate in respect of Australian ▇▇▇▇ Rate Loans.
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CREDIT AGREEMENT
SWIFT & COMPANY
"Interest Rate Contracts" means all interest rate swap
agreements, interest rate cap agreements, interest rate collar agreements and
interest rate insurance.
"Inventory" means (a) in respect of "Inventory" of any
Australian Subsidiary, any "Inventory", as defined under any Australian Document
and (b) otherwise, has the meaning specified in the Pledge and Security
Agreement.
"Inventory Borrowing Base" means, for any Borrower at any
time, the sum of (a) up to 15% of the Dollar Equivalent of the value of the
Eligible Parts and Supplies of such Borrower at such time (valued, in each case,
at the lower of (i) its orderly liquidation value the calculation of which shall
be as determined by reference to the calculations set forth in the most recent
Appraisal made thereof and (ii) the lower of cost and market on a first-in,
first-out basis) and (b) the lesser of (i) up to 70% of the Dollar Equivalent of
the Loan Value of Eligible Inventory (other than Eligible Parts and Supplies and
other packaging, spare parts and supplies) of such Borrower at such time and
(ii) up to 85% of the Dollar Equivalent of the Liquidation Value of Eligible
Inventory (other than Eligible Parts and Supplies and other packaging, spare
parts and supplies) of such Borrower at such time.
"Investment" means, with respect to any Person, (a) any
purchase or other acquisition by such Person of (i) any Security issued by, (ii)
a beneficial interest in any Security issued by, or (iii) any other equity
ownership interest in, any other Person, (b) any purchase by such Person of all
or a significant part of the assets of a business conducted by any other Person,
or all or substantially all of the assets constituting the business of a
division, branch or other unit operation of any other Person, (c) any loan,
advance (other than deposits with financial institutions available for
withdrawal on demand, prepaid expenses, accounts receivable and similar items
made or incurred in the ordinary course of business as presently conducted) or
capital contribution by such Person to any other Person, including all
Indebtedness of any other Person to such Person arising from a sale of property
by such Person other than in the ordinary course of its business and (d) any
Guaranty Obligation incurred by such Person in respect of Indebtedness of any
other Person.
"IRS" means the Internal Revenue Service of the United States
or any successor thereto.
"Issue" means, with respect to any Letter of Credit, to issue
(including any issuance deemed pursuant to Section 2.4(k) (Letters of Credit)),
extend the expiry of, renew or increase the maximum face amount (including by
deleting or reducing any scheduled decrease in such maximum face amount) of,
such Letter of Credit. The terms "Issued" and "Issuance" shall have a
corresponding meaning.
"Issuer" means each Lender or Affiliate of a Lender that (a)
is listed on the signature pages hereof as an "Issuer" or (b) hereafter becomes
an Issuer with the approval of the Administrative Agent and the Company by
agreeing pursuant to an agreement with, and in form and substance satisfactory
to, the Administrative Agent and the Company to be bound by the terms hereof
applicable to Issuers.
"Japanese Stock Pledge" means each Pledge Agreement made by
the Company for the benefit of the Administrative Agent in respect of the Stock
of the Japanese Subsidiaries.
36
CREDIT AGREEMENT
SWIFT & COMPANY
"Japanese Subsidiary" means each Subsidiary of the Company
organized and existing under the laws of Japan.
"Joint Venture" means any Person (a) that is not a Subsidiary
of the Company, (b) in which the Company, any of its Subsidiaries or any other
Joint Venture owns Stock or Stock Equivalents and (c) for which the Company, in
the aggregate together with its Subsidiaries, is, directly or indirectly, the
beneficial owner of 5% or more of any class of Stock or Stock Equivalents of
such Person.
"JPMorgan" has the meaning specified in the preamble to this
Agreement.
"Land" means, in respect of any Person, all of those plots,
pieces or parcels of land now owned, leased or hereafter acquired or leased or
purported to be owned, leased or hereafter acquired or leased (including, in
respect of the Loan Parties, as reflected in the most recent Financial
Statements) by such Person.
"Landlord Waiver" means a letter in form and substance
reasonably acceptable to the Administrative Agent and executed by a landlord in
respect of Inventory of any Borrower or any of its Borrowing Base Contributors
located at the relevant leased premises of such Borrower or any such Borrowing
Base Contributor pursuant to which such landlord, among other things, if
applicable in the relevant jurisdiction, waives or subordinates on terms and
conditions reasonably acceptable to the Administrative Agent any Lien such
landlord may have in respect of such Inventory.
"Leases" means, with respect to any Person, all of those
leasehold estates in real property of such Person, as lessee, as such may be
amended, supplemented or otherwise modified from time to time.
"Lender" means the Swing Loan Lender and each other financial
institution or other entity that (a) is listed on the signature pages hereof as
a "Lender" or (b) from time to time becomes a party hereto by execution of an
Assignment and Acceptance.
"Letter of Credit" means any letter of credit (or, if
requested by an Australian Borrower, bank guarantee) Issued pursuant to Section
2.4 (Letters of Credit).
"Letter of Credit Obligations" means, with respect to any
Borrower at any time, the Dollar Equivalent of the aggregate of all liabilities
at such time of such Borrower to all Issuers with respect to Letters of Credit,
whether or not any such liability is contingent, including, without duplication,
the sum of (a) the Reimbursement Obligations of such Borrower at such time and
(b) the Letter of Credit Undrawn Amounts of such Borrower at such time.
"Letter of Credit Reimbursement Agreement" has the meaning
specified in Section 2.4(a)(iv) (Letters of Credit).
"Letter of Credit Request" has the meaning specified in
Section 2.4(c) (Letters of Credit).
"Letter of Credit Undrawn Amounts" means, with respect to any
Borrower at any time, the aggregate undrawn face amount of all Letters of Credit
outstanding at such time for the account of such Borrower.
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CREDIT AGREEMENT
SWIFT & COMPANY
"Letter of Credit Sublimit" means $125,000,000.
"Leverage Ratio" means, with respect to any Person as of any
date, the ratio of (a) Consolidated Financial Covenant Debt of such Person and
its Subsidiaries outstanding as of such date to (b) Consolidated Adjusted EBITDA
for such Person for the last four Fiscal Quarters ending on or before such date.
"Lien" means any mortgage, deed of trust, pledge,
hypothecation, assignment, charge, deposit arrangement, encumbrance, lien
(statutory or other), Australian Lien, security interest or preference, priority
or other security agreement or preferential arrangement of any kind or nature
whatsoever intended to assure payment of any Indebtedness or the performance of
any other obligation, including any conditional sale or other title retention
agreement, the interest of a lessor under a Capital Lease and any financing
lease having substantially the same economic effect as any of the foregoing.
"Liquidation Value" means, with respect to any Eligible
Inventory of any Borrower at any time and any Appraisal with respect thereto,
the orderly liquidation value of such Eligible Inventory at such time, the
calculation of which shall be determined by reference to the calculations in the
most recent Appraisal with respect thereto (or, if an Australian Collateral
Limit shall exist for such Eligible Inventory and such Australian Collateral
Limit shall be lower than such orderly liquidation value, the Australian
Collateral Limit for such Eligible Inventory at such time).
"Loan" means any Term Loan, Revolving Dollar Loan, Australian
Dollar Loan or Swing Loan.
"Loan Documents" means, collectively, this Agreement, the
Notes (if any), the Australian Debentures and any other certificate (if any)
issued in respect of the Australian Debentures, the Guaranties, the Fee Letter,
the Collateral Documents, the Australian Intercompany Credit Agreement, the
Australian Intercompany Guaranty, each Letter of Credit Reimbursement Agreement
(and, if a Borrower or Guarantor is party thereto, each Letter of Credit), each
Interest Rate Contract or foreign exchange contract or currency swap agreement
between any Loan Party and any Person that was a Lender or an Affiliate of a
Lender at the time it entered into such Interest Rate Contract or foreign
exchange contract or currency swap agreement, each Cash Management Document, the
Collateral Documents and each certificate, power of attorney, agreement or
document executed by a Loan Party and delivered to the Administrative Agent or
any Lender in connection with or pursuant to any of the foregoing.
"Loan Party" means each Borrower, each Guarantor and each
other Subsidiary of Holdings that executes and delivers a Loan Document.
"Loan Value" means, at any time:
(a) with respect to any parcel of Eligible Real Property of
any Borrower and any Appraisal with respect thereto, the Amortized
Value of such Eligible Real Property at such time determined by
reference to such Appraisal (or, for Eligible Property subject at such
time to a Mortgage Value lower than such Amortized Value, such Mortgage
Value);
(b) with respect to all Eligible Equipment of any Borrower and
any Appraisal with respect thereto, the Amortized Value of such
Eligible Equipment at such time
38
CREDIT AGREEMENT
SWIFT & COMPANY
determined by reference to such Appraisal (or for Eligible Equipment
subject at such time to an Australian Collateral Limit lower than such
Amortized Value, such Australian Collateral Limit);
(c) with respect to any Eligible Inventory of any Borrower,
the value of such Eligible Inventory at such time (valued, in each
case, at the lower of cost and market on a first-in, first-out basis)
or, for Eligible Inventory subject to an Australian Collateral Limit at
such time lower than such value, such Australian Collateral Limit; and
(d) with respect to any Eligible Receivables of any Borrower,
the face amount of all Eligible Receivables of such Borrower at such
time (calculated net of finance charges, late fees and other fees that
are unearned, sales, excise or similar taxes, and credit or allowances
granted at such time) or, for Eligible Receivables subject at such time
to an Australian Collateral Limit lower than such face amount, such
Australian Collateral Limit.
"Local Time" means, (a) local time in Sydney, Australia with
respect to the times for the determination of "Australian ▇▇▇▇ Rate" and
"Australian Short-Term Rate", for the receipt of Notices of Australian Dollar
Borrowing, for the receipt by the Australian Agent of any Letter of Credit
Request for Letters of Credit to be Issued by the Australian Lending Office of
any Issuer, for the receipt or sending of notices by, and disbursement by, the
Australian Agent, any Australian Dollar Lender or the Australian Dollar Office
of any Issuer and for payment by the Loan Parties under the Australian Dollar
Subfacility, (b) New York time, with respect to the times for the determination
of "Dollar Equivalent", for the receipt of Notices of Dollar Borrowing, Swing
Loan Requests and Letter of Credit Requests (other than those Letter of Credit
Requests described in clause (a) above), for receipt and sending of notices by
and disbursement by the Administrative Agent, any Lender (other than the
Australian Dollar Lenders in their capacity as such) and the Domestic Lending
Office or Eurodollar Lending Office of any Issuer and for payment by the Loan
Parties under any Facility other than the Australian Dollar Subfacility, (c)
London time, with respect to the times for the determination of "Eurodollar Base
Rate", (d) otherwise, if a place for any determination is specified herein, the
local time at such place of determination and (e) otherwise, New York time.
"Management Agreement" means that certain Monitoring and
Oversight Agreement entered into among SFC and its Subsidiaries and ▇▇▇▇▇, Muse
& Co. Partners, pursuant to Section 4.1.1 of the Acquisition Agreement.
"Material Adverse Change" means a material adverse change in
any of (a) the condition (financial or otherwise), business, assets, contingent
liabilities, prospects, operations, properties or material Contractual
Obligations of Holdings, the Company and its Subsidiaries taken as a whole, (b)
the perfection or priority of the Liens granted pursuant to the Collateral
Documents, (c) the ability of any Borrower to repay the Obligations or of the
other Loan Parties to perform their respective obligations under the Loan
Documents or (d) the rights and remedies of the Administrative Agent, the
Australian Agent, the Australian Collateral Trustee, the Lenders or the Issuers
under the Loan Documents.
"Material Adverse Effect" means an effect that results in or
causes, or could reasonably be expected to result in or cause, a Material
Adverse Change.
39
CREDIT AGREEMENT
SWIFT & COMPANY
"Maximum Australian Dollar Sublimit" means the lesser of (a)
$45,000,000, as such amount may be reduced from time to time pursuant hereto and
(b) the aggregate Revolving Credit Commitments hereunder.
"Maximum Available Borrowing Base" means, with respect to any
Borrower at any time, (a) the Borrowing Base of such Borrower at such time minus
(b) the Dollar Equivalent of the aggregate amount of any Availability Reserve in
effect at such time applicable to such Borrower and its Borrowing Base
Contributors minus (c) the aggregate principal amount of Term Loans owing by
such Borrower and its Borrowing Base Contributors at such time.
"Mexican Stock Pledge" means the Stock Pledge Agreement, among
the Company, Swift Beef Company, a Delaware corporation, each Mexican Subsidiary
and Administrative Agent in respect of the Stock of all Mexican Subsidiaries.
"Mexican Subsidiary" means each Subsidiary of the Company
organized and existing under the laws of Mexico.
"Mexico" means the United Mexican States.
"▇▇▇▇▇'▇" means ▇▇▇▇▇'▇ Investors Services, Inc.
"Mortgage" means any United States Mortgage or any Australian
Mortgage.
"Mortgage Value" means, with respect to any parcel of Eligible
Real Property of any Borrower or any of its Borrowing Base Contributors the
lowest of the maximum stated amounts secured by the Lien on such parcel of
Eligible Real Property granted in favor of the Administrative Agent or the
Australian Collateral Trustee pursuant to the relevant Mortgage.
"Mortgagee's Title Insurance Policy" has the meaning specified
in the definition of U.S. Mortgage Supporting Documents.
"Multiemployer Plan" means a multiemployer plan, as defined in
Section 4001(a)(3) of ERISA, to which the Company, any of its Subsidiaries or
any ERISA Affiliate has any obligation or liability, contingent or otherwise.
"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) or
(n)(ii) 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,
further, that, (x) "Net Cash Proceeds" shall
40
CREDIT AGREEMENT
SWIFT & COMPANY
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 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.
"Net Investment Amount" means, with respect to any Investment
in any Person at any time, the amount, if any, by which (a) the sum of all
Investments (valued as of the date such Investment is made) in such Person (and
any Subsidiary or Joint Venture thereof) made by any Loan Party (including any
capital contribution to such Person, all Indebtedness owing by such Person to
any Loan Party, all Guaranty Obligations of any Loan Party of Indebtedness owing
by such Person to any Loan Party and the Fair Market Value, as of the date of
transfer, of all property transferred to such Person and any Subsidiary thereof
or Joint Venture thereof by any Loan Party) exceeds (b) any return on capital
(in the form of cash or Cash Equivalents) with respect to, or net cash proceeds
of the sale or other disposition of, such Investment received by any Loan Party
from such Person (or any Subsidiary or Joint Venture thereof) or any net cash
proceeds received by any Loan Party from any transfers of property described in
clause (a) above.
"Non-Cash Interest Expense" means, with respect to any Person
for any period, the sum of the following amounts to the extent included in the
definition of Interest Expense: (a) the amount of debt discount and debt
issuance costs amortized, (b) charges relating to write-ups or write-downs in
the book or carrying value of existing Financial Covenant Debt, (c) interest
payable in evidences of Indebtedness or by addition to the principal of the
related Indebtedness (including such non-cash interest payable on the Seller
Note) and (d) other non-cash interest.
"Non-Consenting Lender" has the meaning specified in Section
11.1(c) (Amendments, Waivers, Etc.).
"Non-Funding Lender" has the meaning specified in Section
2.2(f) (Borrowing Procedures).
"Non-Recourse Indebtedness" means Indebtedness of a Subsidiary
of the Company, for which each of the following applies: (a) such Subsidiary was
acquired through a Permitted Acquisition, (b) such Indebtedness is not, in whole
or in part, Indebtedness of any Borrower or any other Pre-Acquisition Loan Party
in respect of such Permitted Acquisition (and for which no Borrower and no other
Pre-Acquisition Loan Party in respect of such Permitted Acquisition has created,
maintained or assumed any Guaranty Obligation or other obligation) and no holder
of such Indebtedness has or could have upon the occurrence of any contingency,
any recourse against any Borrower, any other Pre-Acquisition Loan Party in
respect of such Permitted Acquisition or the assets of any of them and (c) such
Indebtedness is owing to an unaffiliated third-party (other than a Loan Party or
any Subsidiary or Affiliate thereof).
"Non-U.S. Guarantor" means any Subsidiary Guarantor that is
not a Domestic Subsidiary Guarantor.
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CREDIT AGREEMENT
SWIFT & COMPANY
"Non-U.S. Guaranty" means the guaranty, in substantially the
form of Exhibit H-2 (Form of Non-U.S. Guaranty), executed by all Subsidiaries of
the Company that are not Domestic Subsidiaries.
"Non-U.S. Lender" means each Lender (or the Administrative
Agent, but not the Australian Dollar Lenders, the Australian Agent or the
Australian Agent, in each case in their capacity as such) that is not a United
States person as defined in Section 7701(a)(30) of the Code.
"Non-U.S. Person" means any Person that is not a Domestic
Person.
"Note" means any Revolving Credit Note or Term Loan Note.
"Notice of Australian Dollar Borrowing" has the meaning
specified in Section 2.2 (Borrowing Procedures).
"Notice of Borrowing" has the meaning specified in Section 2.2
(Borrowing Procedures).
"Notice of Conversion or Continuation" has the meaning
specified in Section 2.11 (Conversion and Continuation).
"Notice of Dollar Borrowing" has the meaning specified in
Section 2.2 (Borrowing Procedures).
"Obligations" means the Loans, the aggregate Letter of Credit
Obligations and all other amounts, obligations, covenants and duties owing by
any Borrower to any Agent, any Lender, any Issuer, any Affiliate of any of them
or any Indemnitee, of every type and description (whether by reason of an
extension of credit, opening or amendment of a letter of credit or bank
guarantee or payment of any draft drawn or other payment thereunder, loan,
guaranty, indemnification, foreign exchange or currency swap transaction,
interest rate hedging transaction or otherwise), present or future, arising
under this Agreement, any other Loan Document (including Cash Management
Documents and Hedging Contracts that are Loan Documents but excluding the
Australian Intercompany Credit Agreement), whether direct or indirect (including
those acquired by assignment), absolute or contingent, due or to become due, now
existing or hereafter arising and however acquired and whether or not evidenced
by any note, guaranty, Australian Debenture or other instrument or for the
payment of money, including all letter of credit, bank guarantee, cash
management and other fees, interest, charges, expenses, attorneys' fees and
disbursements, Cash Management Obligations and other sums chargeable to any
Borrower under this Agreement, any other Loan Document (including Cash
Management Documents and Hedging Contracts that are Loan Documents but excluding
the Australian Intercompany Credit Agreement) and all obligations of any
Borrower under any Loan Document to provide cash collateral for any Letter of
Credit Obligation.
"PBGC" means the Pension Benefit Guaranty Corporation or any
successor thereto.
"Permanent Mandatory Prepayments" means, in respect of any
Borrower at any time, the aggregate Net Cash Proceeds received by such Borrower,
Holdings and such Borrower's Borrowing Base Contributors on or prior to such
time to the extent such Net Cash Proceeds must be used pursuant to Section
2.9(b) (Mandatory Prepayments) to make mandatory prepayments of
42
CREDIT AGREEMENT
SWIFT & COMPANY
the Obligations; provided, however, in the case of Net Cash Proceeds of a
Reinvestment Event, "Permanent Mandatory Prepayments" shall not include, unless
a Default or Event of Default has occurred and is continuing, (a) for any such
time before the Reinvestment Prepayment Date for such Net Cash Proceeds, the
Reinvestment Deferred Amount for such Net Cash Proceeds and (b) for any such
time on or after such Reinvestment Prepayment Date, the excess of such
Reinvestment Deferred Amount for such Net Cash Proceeds over the Reinvestment
Prepayment Amount for such Reinvestment Event and such Net Cash Proceeds.
"Permit" means any permit, approval, authorization, license,
variance or permission required from a Governmental Authority under an
applicable Requirement of Law.
"Permitted Acquisition" means any Proposed Acquisition subject
to the satisfaction of each of the following conditions:
(a) the Administrative Agent shall receive at least 10
Business Days' prior written notice of such Proposed Acquisition, which
notice shall include, without limitation, a reasonably detailed
description of such Proposed Acquisition;
(b) such Proposed Acquisition shall involve assets located in
the United States or Australia and all assets located in Australia
shall be purchased by Australian Holdings or one of its Subsidiaries;
(c) such Proposed Acquisition shall have been approved by the
Proposed Acquisition Target's board of directors;
(d) no additional Indebtedness or other liabilities shall be
incurred, assumed or otherwise be reflected on a Consolidated balance
sheet of the Company and Proposed Acquisition Target after giving
effect to such Proposed Acquisition, except (i) Loans made hereunder,
(ii) ordinary course trade payables, accrued expenses and (iii)
Indebtedness of the Proposed Acquisition Target permitted under Section
8.1 (Indebtedness);
(e) the Dollar Equivalent of the aggregate Acquisition
Consideration for such Proposed Acquisition and all other Permitted
Acquisitions shall not exceed the sum of (i) $225,000,000 and (ii) the
lesser of (A) $50,000,000 and (B) the amount, if any, by which (1) the
Equity Investment Amount at such time exceeds (2) the amount of all
Restricted Payments (other than those permitted pursuant to Section
8.5(c) (Restricted Payments)) declared or paid after the Closing Date
and prior to such time by any Loan Party (other than Holdings) to
Holdings or any Person that is not a Loan Party;
(f) the Aggregate Available Revolving Credit (after giving
effect to such Proposed Acquisition) shall not be less than
$100,000,000.
(g) at or prior to the closing of such Proposed Acquisition,
the Company (or the Subsidiary making such Proposed Acquisition) and
the Proposed Acquisition Target shall have executed such documents and
taken such actions as may be required under Sections 7.11 (Additional
Collateral and Guaranties) and 7.12 (Landlord Waivers and Bailee's
Letters);
43
CREDIT AGREEMENT
SWIFT & COMPANY
(h) the Company shall have delivered to the Administrative
Agent, in form and substance satisfactory to the Administrative Agent
and the Requisite Lenders and sufficiently in advance of such Permitted
Acquisition, such other financial information, financial analysis,
documentation or other information relating to such Proposed
Acquisition as the Administrative Agent or any Lender shall reasonably
request;
(i) on or prior to the date of such Proposed Acquisition, the
Administrative Agent shall have received, copies of the acquisition
agreement authorizing assignment of the rights and obligations
thereunder of any of Holdings or any of its Subsidiaries to the
Administrative Agent as security for the Obligations, related
Contractual Obligations and instruments and, in form and substance
reasonably satisfactory to the Administrative Agent, all opinions,
certificates, lien search results and other documents reasonably
requested by the Administrative Agent; and
(j) at the time of such Proposed Acquisition and after giving
effect thereto, (A) no Default or Event of Default shall have occurred
and be continuing, (B) all representations and warranties contained in
Article IV (Representations and Warranties) and in the other Loan
Documents shall be true and correct in all material respects, and (C)
the Company shall be in compliance with all financial covenants
contained in Article V (Financial Covenants) for the most recent four
Fiscal Quarter period for which Financial Statements have been
delivered pursuant to Section 6.1 (Financial Statements) on a Pro Forma
Basis after giving effect to such Proposed Acquisition.
"Permitted Investors" means Hicks, Muse, its Affiliates and
each of their principals, employees, partners, officers, stockholders, members
and directors.
"Permitted Joint Venture" means any Joint Venture (a) in which
the other investors, participants and holders of Stock and Stock Equivalents
therein participate on terms no more favorable than those applicable to the
Company or such Subsidiary (other than due to their percentage ownership of
Stock or Stock Equivalents therein (and rights incidental thereto)), (b) that is
not a Loan Party, that does not own Stock or Stock Equivalents in any Loan Party
and no direct or indirect Subsidiary or Joint Venture of which is a Loan Party
and (c) in which no Loan Party shall be under any Contractual Obligation to make
Investments or incur Guaranty Obligations that would be in violation of this
Agreement.
"Permitted Unsecured Indebtedness" means Indebtedness of any
Loan Party under the Senior Notes, the Subordinated Notes or Additional
Unsecured Indebtedness, in each case to the extent permitted to be incurred by
such Loan Party hereunder.
"Permitted Unsecured Debt Document" means each of (a) the
Senior Notes and the Senior Notes Indenture, (b) the Subordinated Notes and the
Subordinated Notes Indenture and (c) on and after the issuance of any Additional
Unsecured Indebtedness, each note and indenture evidencing or governing such
Additional Unsecured Indebtedness, together with, in the case of clause (a), (b)
or (c) above, any other agreement, certificate, power of attorney, or document
executed in connection with or pursuant to any of the foregoing.
"Person" means an individual, partnership, corporation
(including a business trust), joint stock company, estate, trust, limited
liability company, unincorporated association, joint venture or other entity or
a Governmental Authority.
44
CREDIT AGREEMENT
SWIFT & COMPANY
"Pledge and Security Agreement" means an agreement, in
substantially the form of Exhibit I (Form of Pledge and Security Agreement),
executed by each Borrower and each Guarantor.
"Pledged Certificates" has the meaning specified in the Pledge
and Security Agreement.
"Pledged Instruments" has the meaning specified in the Pledge
and Security Agreement.
"Pre-Acquisition Loan Party" means, in respect of any
Permitted Acquisition, each Loan Party other than each Loan Party that (a) was
not a Loan Party immediately prior to such Permitted Acquisition and (b) was (x)
acquired by the Company or any of its Subsidiaries as part of such Permitted
Acquisition or (y) created for the sole purpose of effecting such Permitted
Acquisition and owns exclusively Stock, Stock Equivalents or assets acquired as
part of such Permitted Acquisition.
"Pro Forma Basis" means, with respect to any determination for
any period, that such determination shall be made giving pro forma effect to
each acquisition consummated during such period, together with all transactions
relating thereto consummated during such period (including any incurrence,
assumption, refinancing or repayment of Indebtedness, provided, however, that
any such incurrence shall be treated as a refinancing of prior Indebtedness at
the time of such repayment or reduction to the extent (a) the principal amount
of such prior Indebtedness of the Company or its Subsidiaries has been
permanently repaid or reduced during such period (including a corresponding
reduction in the commitments, if any, for such prior Indebtedness) either (i)
using the cash proceeds of a contribution to the capital of the Company from the
proceeds of the issuance of Stock or Stock Equivalents by Holdings or from the
proceeds of a contribution to the capital of Holdings or (ii) as a result of a
permitted exchange of such Indebtedness for Stock or Stock Equivalents of
Holdings and (b) such permanent repayment or reduction of such prior
Indebtedness has not otherwise been used pursuant to this proviso to treat any
other incurrence of Indebtedness as a refinancing of such prior Indebtedness),
as if such acquisition and related transactions had been consummated on the
first day of such period, in each case based on historical results accounted for
in accordance with GAAP and, to the extent applicable, reasonable assumptions
that are specified in details in the relevant Compliance Certificate, Financial
Statement or other document provided to the Administrative Agent or any Lender
in connection herewith in accordance with Regulation S-X of the Securities Act
of 1933.
"Pro Forma Balance Sheet" has the meaning specified in Section
4.4(d) (Financial Statements).
"Projections" means those financial projections dated
September 6, 2002 covering the fiscal years ending in May 31, 2002 through May
31, 2007 inclusive, to be delivered to the Lenders by the Company.
"Property Loss Event" means (a) any loss of or damage to
property of the Company or any of its Subsidiaries that results in the receipt
by such Person of proceeds of insurance the Dollar Equivalent of which exceeds
$3,000,000 (individually or in the aggregate) or (b) any taking of property of
the Company or any of its Subsidiaries that results in the receipt by
45
CREDIT AGREEMENT
SWIFT & COMPANY
such Person of a compensation payment in respect thereof the Dollar Equivalent
of which exceeds $3,000,000 (individually or in the aggregate).
"Proposed Acquisition" means the proposed acquisition by the
Company or any of its Subsidiaries of all or substantially all of the assets or
Stock of any Proposed Acquisition Target, or the merger of any Proposed
Acquisition Target with or into the Company or any Subsidiary of the Company
(and, in the case of a merger with any Borrower, with such Borrower being the
surviving corporation).
"Proposed Acquisition Target" means any Person or any
operating division thereof subject to a Proposed Acquisition.
"Proposed Change" has the meaning specified in Section 11.1(c)
(Amendments, Waivers, Etc.).
"Protective Advances" means all expenses, disbursements and
advances incurred by the Administrative Agent, the Australian Agent or the
Australian Collateral Trustee pursuant to the Loan Documents after the
occurrence and during the continuance of an Event of Default that the
Administrative Agent, in its sole discretion exercised reasonably, deems
necessary or desirable to preserve or protect the Collateral or any portion
thereof or to enhance the likelihood, or maximize the amount, of repayment of
the Obligations. The Administrative Agent may, in its sole discretion exercised
reasonably, allocate Protective Advances to any Borrower taking into account,
among other things, the ownership of the Collateral and the recipient of such
Protective Advances.
"Purchase Price Adjustment" means any purchase price
adjustment for the benefit of Acquisition Co., the Company or any of their
respective Affiliates (other than the Cattle Feed Companies) pursuant to Section
5.1 (Closing Balance Sheets) of the Acquisition Agreement.
"Purchasing Lender" has the meaning specified in Section 11.7
(Sharing of Payments, Etc.).
"Rabobank" has the meaning specified in the preamble to this
Agreement.
"Ratable Portion" or (other than in the expression "equally
and ratably") "ratably" means, with respect to any Lender at any time of
determination:
(a) with respect to the Dollar Revolving Credit Facility or
the Revolving Credit Facility, the percentage obtained by dividing (i)
the Revolving Credit Commitment of such Lender at such time by (ii) the
Aggregate Revolving Credit Commitments at such time (or, if such time
is after the Revolving Credit Termination Date, the percentage obtained
by dividing the aggregate outstanding principal balance of the
aggregate Revolving Credit Outstandings of the Borrowers owing to such
Lender at such time by the aggregate principal balance of the aggregate
Revolving Credit Outstandings of the Borrowers owing to all Lenders at
such time);
(b) with respect to the Term Loan Facility, the percentage
obtained by dividing (i) the Term Loan Commitment of such Lender at
such time by (ii) the aggregate Term Loan Commitments of all Lenders at
such time (or, if such time is after the Closing Date,
46
CREDIT AGREEMENT
SWIFT & COMPANY
the percentage obtained by dividing the principal amount of such
Lender's Term Loans outstanding at such time by the aggregate principal
amount of the Term Loans of all Lenders outstanding at such time); and
(c) with respect to the Facilities, the percentage obtained by
dividing (i) the sum of (x) the Term Loan Commitment of such Lender at
such time (or, if such time is after the Closing Date, the principal
amount of such Lender's Term Loans outstanding at such time) and (y)
the Revolving Credit Commitment of such Lender at such time (or, if
such time is after the Revolving Credit Termination Date, the aggregate
principal balance of the aggregate Revolving Credit Outstandings of the
Borrowers owing to such Lender at such time) by (ii) the sum of (x) the
Term Loan Commitment of all Lenders at such time (or, if such time is
after the Closing Date, the aggregate principal amount of the Term
Loans outstanding at such time) and (y) the Aggregate Revolving Credit
Commitments at such time (or, if such time is after the Revolving
Credit Termination Date, the aggregate principal balance of the
aggregate Revolving Credit Outstandings of the Borrowers at such time).
"Real Property" means, in respect of any Person, the Land of
such Person, together with the right, title and interest of such Person, if any,
in and to the streets, the Land lying in the bed of any streets, roads or
avenues, opened or proposed, in front of, the air space and development rights
pertaining to the Land and the right to use such air space and development
rights, all rights of way, privileges, liberties, tenements, hereditaments and
appurtenances belonging or in any way appertaining thereto, all fixtures, all
easements now or hereafter benefiting the Land and all royalties and rights
appertaining to the use and enjoyment of the Land, including all alley, vault,
drainage, mineral, water, oil and gas rights, together with all of the buildings
and other improvements now or hereafter erected on the Land and any fixtures
appurtenant thereto.
"Receivables Borrowing Base" means, with respect to any
Borrower at any time, up to 85% of the Dollar Equivalent of the Loan Value of
all Eligible Receivables of such Borrower at such time.
"Reference Screen" means (a) with respect to any Eurodollar
Rate Borrowing, the Dow ▇▇▇▇▇ Markets Telerate Page 3750 and (b) with respect to
any Australian Dollar Borrowing, the Reuters Screen (and, with respect to any
Australian Short-Term Borrowing, page 27 thereof), or, in the event the
applicable rate does not appear on either such screen or otherwise on the Dow
▇▇▇▇▇ Market (in the case of clause (a) above) or Reuters (in the case of clause
(b) above) screen, such other comparable publicly available service as may be
selected by the Administrative Agent.
"Register" has the meaning specified in Section 11.2(c)
(Assignments and Participations).
"Reimbursement Date" has the meaning specified in Section
2.4(g) (Letters of Credit).
"Reimbursement Obligations" means, with respect to any
Borrower, any matured obligation of such Borrower to repay, on the date of such
draw and in the currency drawn, all amounts drawn under all Letters of Credit
Issued for the account of such Borrower, and all other
47
CREDIT AGREEMENT
SWIFT & COMPANY
matured reimbursement or repayment obligations of such Borrower to any Issuer
with respect to amounts drawn under Letters of Credit.
"Reinvestment Deferred Amount" means, with respect to any Net
Cash Proceeds of any Reinvestment Event, the portion of such Net Cash Proceeds
subject to a Reinvestment Notice.
"Reinvestment Event" means any Asset Sale (other than the
Australian Asset Sale or an Asset Sale that is part of a sale and leaseback
transaction) or Property Loss Event in respect of which the Company has
delivered a Reinvestment Notice for any of the Net Cash Proceeds thereof.
"Reinvestment Notice" means a written notice executed by a
Responsible Officer of the Company stating that no Default or Event of Default
has occurred and is continuing and that the Company (directly or indirectly
through one of its Subsidiaries) intends and expects to use all or a specified
portion of the Net Cash Proceeds of an Asset Sale or Property Loss Event to
acquire replacement assets useful in its or one of its Subsidiaries' businesses
or, in the case of a Property Loss Event, to effect repairs.
"Reinvestment Prepayment Amount" means, with respect to Net
Cash Proceeds of any Reinvestment Event, the Reinvestment Deferred Amount for
such Net Cash Proceeds less any amount expended or required to be expended
pursuant to a Contractual Obligation entered into prior to the relevant
Reinvestment Prepayment Date for such Net Cash Proceeds to acquire, to the
extent otherwise permitted hereunder, replacement assets useful in the business
of the Company or its Subsidiaries or, in the case of a Property Loss Event, to
effect repairs.
"Reinvestment Prepayment Date" means, with respect to any Net
Cash Proceeds of any Reinvestment Event, the earlier of (a) the date occurring
270 days after the receipt of such Net Cash Proceeds and (b) the date that is
five Business Days after the date on which the Company shall have notified the
Administrative Agent of the Company's determination not to acquire replacement
assets useful in the Company's or a Subsidiary's business (or, in the case of a
Property Loss Event, not to effect repairs) with all or any portion of the
relevant Reinvestment Deferred Amount for such Net Cash Proceeds.
"Reinvestment Reserve" means, with respect to any Net Cash
Proceeds of any Reinvestment Event, a reserve, in effect from the time of the
receipt of such Net Cash Proceeds to the Reinvestment Prepayment Date for such
Net Cash Proceeds, in an amount equal to the Reinvestment Deferred Amount for
such Net Cash Proceeds, as such amount may be reduced from time to time to
permit, and concurrently with the incurrence of, Borrowings by, and Swing Loans
to, the Borrowers of all or part of such Reinvestment Deferred Amount, to the
extent the proceeds of such Borrowings and Swing Loans are used solely to
acquire replacement assets useful in the Company's or a Subsidiary's business
(or, in the case of a Property Loss Event, to effect repairs).
"Related Documents" means each Acquisition Document, the
Australian Intercompany Credit Agreement, the Australian Intercompany Guaranty,
each Australian Intercompany Collateral Document, the Seller Letter, each
Permitted Unsecured Debt Document, the Tax Sharing Agreement and the
Contribution Agreement and, when executed, the Replacement Credit Documents.
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CREDIT AGREEMENT
SWIFT & COMPANY
"Release" means, with respect to any Person, any release,
spill, emission, leaking, pumping, injection, deposit, disposal, discharge,
dispersal, leaching or migration, in each case, of any Contaminant into the
indoor or outdoor environment or into or out of any property owned by such
Person, including the movement of Contaminants through or in the air, soil,
surface water, ground water or property.
"Remedial Action" means all actions required to (a) clean up,
remove, treat or in any other way address any Contaminant in the indoor or
outdoor environment, (b) prevent the Release or threat of Release or minimize
the further Release so that a Contaminant does not migrate or endanger or
threaten to endanger public health or welfare or the indoor or outdoor
environment or (c) perform pre-remedial studies and investigations and
post-remedial monitoring and care.
"Replacement Credit Lines" has the meaning specified in
Section 8.1(k) (Indebtedness).
"Replacement Credit Documents" means each credit agreement,
guaranty and certificate, agreement or document executed by a Loan Party in
connection with or pursuant to any Replacement Credit Line.
"Requirement of Law" means, with respect to any Person, the
common law and all federal, state, local and foreign (including Australia) laws,
treaties, rules and regulations, orders, judgments, decrees and other
determinations of, concessions, grants, franchises, licenses and other
Contractual Obligations with, any Governmental Authority or arbitrator,
applicable to or binding upon such Person or any of its property or to which
such Person or any of its property is subject.
"Requisite Australian Dollar Lenders" means, (a) at any time
on or before the Revolving Credit Termination Date, Australian Dollar Lenders
having (i) if there are no more than two Australian Dollar Lenders, at least
66-2/3% and (ii) otherwise, more than 50% of the aggregate Australian Dollar
Sublimits in effect at such time and (b) at any time after the Revolving Credit
Termination Date, Australian Dollar Lenders having (i) if there are no more than
two Australian Dollar Lenders, at least 66-2/3% and (ii) otherwise, more than
50% of the aggregate principal amount of any Australian Dollar Loans outstanding
at such time. A Non-Funding Lender shall not be included in the calculation of
"Requisite Australian Dollar Lenders."
"Requisite Lenders" means, collectively, Lenders having more
than 50% of the sum of (a) the aggregate outstanding amount of the Revolving
Credit Commitments or, after the Revolving Credit Termination Date, more than
50% of the aggregate Revolving Credit Outstandings of the Borrowers and (b) the
aggregate outstanding amount of the Term Loan Commitments or, after the Closing
Date, the principal amount of all Term Loans then outstanding. A Non-Funding
Lender shall not be included in the calculation of "Requisite Lenders."
"Requisite Revolving Credit Lenders" means (a) at any time on
or before the Revolving Credit Termination Date, Revolving Credit Lenders having
more than 50% of the aggregate amount of the Revolving Credit Commitments in
effect at such time and (b) at any time after the Revolving Credit Termination
Date, Revolving Credit Lenders having more than 50% of the aggregate Revolving
Credit Outstandings of the Borrowers at such time. A Non-Funding Lender shall
not be included in the calculation of "Requisite Revolving Credit Lenders."
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CREDIT AGREEMENT
SWIFT & COMPANY
"Requisite Term Loan Lenders" means (a) at any time on and
before the Closing Date, Term Loan Lenders having more than 50% of the aggregate
amount of the Term Loan Commitments in effect at such time and (b) at any time
after the Closing Date, Term Loan Lenders having more than 50% of the principal
amount of all Term Loans outstanding at such time.
"Responsible Officer" means, with respect to any Person, any
of the principal executive officers, managing members or general partners of
such Person but, in any event, with respect to financial matters, the chief
financial officer, treasurer or controller of such Person; provided, however,
that, in respect of any certificate or other document to be delivered on the
Closing Date, the term "Responsible Officer", when used in respect of any Loan
Party, shall mean any Responsible Officer of such Loan Party, after giving
effect to the consummations of the Transactions scheduled to be consummated on
the Closing Date.
"Restricted Payment" means (a) any dividend, distribution or
any other payment whether direct or indirect, on account of any Stock or Stock
Equivalents of the Company or any of its Subsidiaries now or hereafter
outstanding and (b) any redemption, retirement, sinking fund or similar payment,
purchase or other acquisition for value, direct or indirect, of any Stock or
Stock Equivalents of the Company or any of its Subsidiaries now or hereafter
outstanding.
"Restricted Payment Allowance" means, at any time, the amount,
if any, by which (a) the sum of (i) 50% of the Consolidated Net Income (to the
extent such Consolidated Net Income shall be positive) of the Company accrued
subsequent to May 26, 2002 to the last day of the most recently ended Fiscal
Quarter or Fiscal Year for which Financial Statements have been delivered
pursuant to clause (b) or (c) of Section 6.1 (Financial Statements) and (ii) the
Equity Investment Amount at such time exceeds (b) the sum of (i) 100% of the
deficit in Consolidated Net Income (if such Consolidated Net Income shall be a
deficit) of the Company accrued subsequent to May 26, 2002 to the last day of
the most recently ended Fiscal Quarter or Fiscal Year for which Financial
Statements have been delivered pursuant to clause (b) or (c) of Section 6.1
(Financial Statements) and (ii) the aggregate Net Investment Amount at such time
for all Investments by any Loan Party permitted under clause (j)(vii) or clause
(l) of Section 8.3 (Investments).
"Revolving Credit Borrowing" means any Revolving Credit Dollar
Borrowing or Australian Dollar Borrowing.
"Revolving Credit Commitment" means, with respect to each
Revolving Credit Lender, the commitment of such Revolving Credit Lender to make
Revolving Loans and acquire interests in other Revolving Credit Outstandings in
the aggregate principal amount outstanding not to exceed the amount set forth
opposite such Revolving Credit Lender's name on Schedule I (Commitments) under
the caption "Revolving Credit Commitment," as amended to reflect each Assignment
and Acceptance executed by such Revolving Credit Lender and as such amount may
be reduced pursuant to this Agreement. The aggregate Revolving Credit
Commitments on the Closing Date shall be $350,000,000.
"Revolving Credit Dollar Borrowing" means Revolving Dollar
Loans made on the same day by the Revolving Credit Lenders ratably according to
their respective Revolving Credit Commitments.
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CREDIT AGREEMENT
SWIFT & COMPANY
"Revolving Credit Dollar Outstandings" means, at any time with
respect to any Borrower, the sum of (a) the principal amount of the Revolving
Dollar Loans owing by such Borrower and outstanding at such time, (b) the Letter
of Credit Obligations of such Borrower outstanding at such time and (c) the
principal amount of the Swing Loans owing by such Borrower and outstanding at
such time.
"Revolving Credit Facility" means the Revolving Credit
Commitments and the provisions herein related to the Revolving Loans, Letters of
Credit and Swing Loans.
"Revolving Credit Lender" means each Lender having a Revolving
Credit Commitment or obligations (whether or not contingent) in respect of
Revolving Credit Outstandings.
"Revolving Credit Note" means any Australian Dollar Revolving
Credit Note and any Dollar Revolving Credit Note.
"Revolving Credit Outstandings" means, with respect to any
Borrower at any time, the sum of (a) the Dollar Equivalent of the principal
amount of the Revolving Loans owing by such Borrower and outstanding at such
time, (b) the Letter of Credit Obligations of such Borrower outstanding at such
time and (c) the principal amount of the Swing Loans owing by such Borrower and
outstanding at such time.
"Revolving Credit Termination Date" shall mean the earliest of
(a) the Scheduled Termination Date, (b) the date of termination of all of the
Revolving Credit Commitments pursuant to Section 2.5 (Reduction and Termination
of the Revolving Credit Commitments) and (c) the date on which the Obligations
become due and payable pursuant to Section 9.2 (Remedies).
"Revolving Dollar Loan" has the meaning specified in Section
2.1 (The Commitments).
"Revolving Loan" means any Revolving Dollar Loan or Australian
Dollar Loan.
"S&C 2" means S&C Holdco 2, Inc., a Delaware corporation.
"S&P" means Standard & Poor's Rating Services.
"▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act" means the United States ▇▇▇▇▇▇▇▇-▇▇▇▇▇
Act of 2002.
"SCH Business Rules" means the operating rules of the
Australian ASX Settlement and Transfer Corporation Pty. Limited (ACN 008 504
532).
"Scheduled Termination Date" the fifth anniversary of the
Closing Date.
"Secured Obligations" means, in the case of any Borrower, the
Obligations of such Borrower and, in the case of any other Loan Party, the
obligations of such Loan Party under the Guaranties and the other Loan Documents
to which it is a party (other than the Australian Intercompany Credit Agreement,
the Australian Intercompany Guaranty and the Australian Intercompany Collateral
Documents).
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CREDIT AGREEMENT
SWIFT & COMPANY
"Secured Parties" means the Lenders, the Issuers, the Agents
and any other holder of any Secured Obligation.
"Securities Account" means (a) any "Securities Account", as
defined in the UCC, and (b) any "holding" as defined in the SCH Business Rules
and any other account pursuant to which a Person is or may be granted or may
hold or exercise rights in respect of the Australian Marketable Securities of
another Person.
"Security" means any Stock, Stock Equivalent, voting trust
certificate, bond, debenture, note or other evidence of Indebtedness (other than
Hedging Contracts, to the extent not evidenced by any note or other instrument),
whether secured, unsecured, convertible or subordinated, or any certificate of
interest, share or participation in, any temporary or interim certificate for
the purchase or acquisition of, or any right to subscribe to, purchase or
acquire, any of the foregoing, but shall not include any evidence of the
Obligations.
"Seller" means ConAgra Foods, Inc., a Delaware corporation.
"Seller Letter" means the letter, dated September 3, 2002,
from the Seller to the Arrangers, accepted by Acquisition Co. and the Arrangers
on September 3, 2002 and containing certain undertakings of the Seller in
connection with the Transactions.
"Seller Note" means a promissory note issued on the Closing
Date by SFC in Dollars to the Seller and assumed by S&C 2, in an aggregate
principal amount not to exceed $150,000,000.
"Selling Lender" has the meaning specified in Section 11.7
(Sharing of Payments, Etc.).
"Senior Notes" means the 10-1/8% Senior Notes due 2009 issued
by the Company in Dollars and governed by the terms of the Senior Notes
Indenture.
"Senior Notes Indenture" means the Indenture, dated as of the
Closing Date, between the Company and The Bank of New York Trust Company of
Florida, N.A., as Trustee, in respect of the issuance of senior notes.
"Senior Notes Offering Memorandum" means the final offering
memorandum, dated September 13, 2002 prepared by the Company in compliance with
Rule 144A (Private Releases of Securities to Institutions) of the United States
Securities Act of 1933, in connection with the issuance of the Senior Notes.
"SFC" means Swift Foods Company (formerly known as Swift &
Company and S&C Holdco, Inc.), a Delaware corporation.
"Solvent" means, with respect to any Person as of any date,
that (a) the value of the assets of such Person (both at fair value and present
fair saleable value) is, on the date of determination, greater than the total
amount of liabilities (including contingent and unliquidated liabilities) of
such Person as of such date, (b) as of such date, such Person is able to pay all
liabilities of such Person as such liabilities mature, (c) as of such date, such
Person does not have unreasonably small capital given the nature of its business
and (d) as of such date, if such Person is an Australian Subsidiary, such Person
is not insolvent, under, and as defined in, the Australian
52
CREDIT AGREEMENT
SWIFT & COMPANY
Corporations Act. In computing the amount of contingent or unliquidated
liabilities at any time, such liabilities shall be computed at the amount that,
in light of all the facts and circumstances existing at such time, represents
the amount that can reasonably be expected to become an actual or matured
liability.
"Sources and Uses Statement" has the meaning specified in
Section 3.1(a)(xiii) (Conditions Precedent to Initial Loans and Letters of
Credit).
"Special Purpose Vehicle" means any special purpose funding
vehicle identified as such in writing by any Lender to the Administrative Agent.
"Sponsors" means ▇▇▇▇▇, Muse and Booth Creek Management
Corporation.
"Sponsors' Equity Investment" means the cash equity
contribution from the Sponsors to SFC in Dollars to pay part of the purchase
price pursuant to the Acquisition Agreement in an aggregate amount of not less
than $160,000,000.
"Standby Letter of Credit" means any Letter of Credit that is
not a Documentary Letter of Credit.
"Stated Limit" means, in respect of any Australian Collateral
Document, the lowest of the maximum amounts stated to be recoverable pursuant to
such Australian Collateral Document.
"Stock" means shares of capital stock (whether denominated as
common stock or preferred stock), beneficial, partnership or membership
interests, participations or other equivalents (regardless of how designated) of
or in a corporation, partnership, limited liability company or equivalent
entity, whether voting or non-voting.
"Stock Equivalents" means all securities convertible into or
exchangeable for Stock and all warrants, options or other rights to purchase or
subscribe for any Stock, whether or not presently convertible, exchangeable or
exercisable.
"Subordinated Notes" means the 12-1/2% Senior Subordinated
Notes due 2010 issued by the Company in Dollars and governed by the terms of the
Subordinated Notes Indenture.
"Subordinated Notes Indenture" means the Indenture, dated as
of the Closing Date, between the Company and The Bank of New York Trust Company
of Florida, N.A., as Trustee, in respect of senior subordinated notes.
"Subsidiary" means, with respect to any Person, any
corporation, partnership, limited liability company or other business entity of
which an aggregate of more than 50% of the outstanding Voting Stock is, at the
time, directly or indirectly, owned or controlled by such Person or one or more
Subsidiaries of such Person.
"Subsidiary Guarantor" means each Subsidiary of the Company
party to or that becomes party to the Guaranties.
53
CREDIT AGREEMENT
SWIFT & COMPANY
"Substitute Institution" has the meaning specified in Section
2.17 (Substitution of Lenders).
"Substitution Notice" has the meaning specified in Section
2.17 (Substitution of Lenders).
"Swing Loan" has the meaning specified in Section 2.3 (Swing
Loans).
"Swing Loan Lender" means Citicorp or any other Lender that
becomes the Administrative Agent or agrees, with the approval of the
Administrative Agent and the Company, to act as Swing Loan Lender hereunder, in
each case in its capacity as the Swing Loan Lender hereunder.
"Swing Loan Request" has the meaning specified in Section
2.3(b) (Swing Loans).
"Swing Loan Sublimit" means $25,000,000.
"Syndication Agent" has the meaning specified in the preamble
to this Agreement.
"Tax Affiliate" means, with respect to any Person, (a) any
Subsidiary of such Person and (b) any Affiliate of such Person with which such
Person files or is eligible to file consolidated, combined or unitary tax
returns.
"Taxes" has the meaning specified in Section 2.16(a) (Taxes).
"Tax Return" has the meaning specified in Section 4.8(a)
(Taxes).
"Tax Sharing Agreement" means a Tax Sharing Agreement among
Holdings, SFC, S&C 2, the Company and the Cattle Feed Companies.
"Term Loan" has the meaning specified in Section 2.1 (The
Commitments).
"Term Loan Borrowing" means Term Loans made on the same day by
the Term Loan Lenders ratably according to their respective Term Loan
Commitments.
"Term Loan Commitment" means, with respect to each Term Loan
Lender, the commitment of such Lender to make a Term Loan to the Company in the
aggregate principal amount outstanding not to exceed the amount set forth
opposite such Lender's name on Schedule I (Commitments) under the caption "Term
Loan Commitment" as amended to reflect each Assignment and Acceptance executed
by such Lender and as such amount may be reduced pursuant to this Agreement. The
aggregate Term Loan Commitments on the Closing Date shall be $200,000,000.
"Term Loan Facility" means the Term Loan Commitments and the
provisions herein related to the Term Loans.
"Term Loan Lender" means each Lender having a Term Loan
Commitment or an outstanding Term Loan.
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CREDIT AGREEMENT
SWIFT & COMPANY
"Term Loan Maturity Date" means the sixth anniversary of the
Closing Date.
"Term Loan Note" means each promissory note of the Company
payable to the order of any Term Loan Lender in the principal amount of the Term
Loan made by such Term Loan Lender to the Company on the Closing Date.
"Title IV Plan" means a pension plan, other than a
Multiemployer Plan, covered by Title IV of ERISA and to which the Company, any
of its Subsidiaries or any ERISA Affiliate has any obligation or liability,
contingent or otherwise.
"Transactions" means the transactions contemplated in
connection with the Sponsors' Equity Investment, the closing of the Facilities,
the Australian Intercompany Credit Agreement, the issuance of the Senior Notes
and the Subordinated Notes, the consummation of the Acquisition and the
consummation of the other transactions contemplated by the Related Documents.
"UCC" has the meaning specified in the Pledge and Security
Agreement.
"Unintended Recipients" has the meaning specified in Section
11.4 (Indemnities).
"United States" means the United States of America and any
state thereof or political subdivision of any of them.
"Unused Commitment Fee" has the meaning specified in Section
2.12(a) (Fees).
"Updated Appraisal" has the meaning specified in Section 6.12
(Borrowing Bases Determination).
"U.S. Bank" has the meaning specified in the preamble to this
Agreement.
"U.S. Mortgage" means any mortgage, deed of trust or other
real estate security document made or required herein to be made by the Company
or any of its Borrowing Base Contributors, each in form and substance reasonably
satisfactory to the Administrative Agent.
"U.S. Mortgage Supporting Documents" means, with respect to a
Mortgage for a parcel of Real Property, each the following:
(a) (i) evidence in form and substance reasonably satisfactory
to the Administrative Agent that the recording of counterparts of such
U.S. Mortgage in the recording offices specified in such U.S. Mortgage
will create a valid and enforceable first priority lien on property
described therein in favor of the Administrative Agent for the benefit
of the Secured Parties (or in favor of such other trustee as may be
required or desired under local law) subject only to (A) Liens
permitted under Section 8.2 (Liens, Etc.) and (B) such other Liens as
the Administrative Agent may reasonably approve and (ii) an opinion of
counsel in each state in which any such U.S. Mortgage is to be recorded
in form and substance and from counsel reasonably satisfactory to the
Administrative Agent;
(b) (i) a mortgagee's title policy (or policies) or marked-up
unconditional binder (or binders) for such insurance (or other evidence
reasonably acceptable to the
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CREDIT AGREEMENT
SWIFT & COMPANY
Administrative Agent proving ownership thereof) ("Mortgagee's Title
Insurance Policy"), dated a date reasonably satisfactory to the
Administrative Agent, and shall (A) be in an amount not less than the
appraised value (determined by reference to the Initial Appraisals) of
such parcel of Real Property, (B) be issued at ordinary rates, (C)
insure that the Lien granted pursuant to the Mortgage insured thereby
creates a valid first Lien on such parcel of Real Property free and
clear of all defects and encumbrances, except such as may be approved
by the Administrative Agent and Customary Permitted Liens, (D) name the
Administrative Agent for the benefit of the Secured Parties as the
insured thereunder, (E) be in the form of ALTA Loan Policy - 1992 (or
such local equivalent thereof as is reasonably satisfactory to the
Administrative Agent), (F) contain, where available, a comprehensive
lender's endorsement (including, but not limited to, a revolving credit
endorsement and a floating rate endorsement), (G) be issued by Chicago
Title Insurance Company, First American Title Insurance Company,
Lawyers Title Insurance Corporation or any other title company
reasonably satisfactory to the Administrative Agent (including any such
title companies acting as co-insurers or reinsurers) and (H) be
otherwise in form and substance reasonably satisfactory to the
Administrative Agent and (ii) a copy of all documents referred to, or
listed as exceptions to title, in such title policy (or policies) in
each case in form and substance reasonably satisfactory to the
Administrative Agent;
(c) maps or plats of a current as-built survey of such parcel
of Real Property certified to and received by (in a manner reasonably
satisfactory to each of them) the Administrative Agent and the title
insurance company issuing the Mortgagee's Title Insurance Policy for
such Mortgage, dated a date reasonably satisfactory to the
Administrative Agent and such title insurance company, by an
independent professional licensed land surveyor reasonably satisfactory
to the Administrative Agent and such title insurance company, which
maps or plats and the surveys on which they are based shall be made in
form and substance reasonably satisfactory to the Administrative Agent;
(d) evidence in form and substance reasonably satisfactory to
the Administrative Agent that all premiums in respect of each
Mortgagee's Title Insurance Policy, all recording fees and stamp,
documentary, intangible or mortgage taxes, if any, in connection with
the Mortgage have been paid;
(e) a Phase I environmental report with respect to such parcel
of Real Property, dated a date not more than one year prior to the
Closing Date, showing no material condition of environmental concern
and otherwise in form and substance reasonably satisfactory to the
Administrative Agent; and
(f) such other agreements, documents and instruments in form
and substance reasonably satisfactory to the Administrative Agent as
the Administrative Agent deems necessary or appropriate to create,
register or otherwise perfect, maintain, evidence the existence,
substance, form or validity of, or enforce a valid and enforceable
first priority lien on such parcel of Real Property in favor of the
Administrative Agent for the benefit of the Secured Parties (or in
favor of such other trustee as may be required or desired under local
law) subject only to (A) Liens permitted under Section 8.2 (Liens,
Etc.) and (B) such other Liens as the Administrative Agent may
reasonably approve.
"Variable Rate" means (a) with respect to Base Rate Loans, the
Base Rate and (b) with respect to Australian Short-Term Loans, the Australian
Short-Term Rate.
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CREDIT AGREEMENT
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"Variable Rate Loan" means each Base Rate Loan and each
Australian Short-Term Loan.
"Voting Stock" means Stock of any Person having ordinary power
to vote in the election of members of the board of directors, managers, trustees
or other controlling Persons, of such Person (irrespective of whether, at the
time, Stock of any other class or classes of such entity shall have or might
have voting power by reason of the happening of any contingency).
"Wholly-Owned Subsidiary" means, in respect of any Person, any
Subsidiary of such Person, all of the Stock of which (other than director's
qualifying shares, as may be required by law) is owned by such Person, either
directly or indirectly through one or more Wholly-Owned Subsidiaries of such
Person.
"Withdrawal Liability" means the aggregate liability incurred
(whether or not assessed) with respect to all Multiemployer Plans pursuant to
Section 4201 of ERISA or for increases in contributions required to be made
pursuant to Section 4243 of ERISA.
"Working Capital" means, for any Person at any date, the
amount, if any, by which the Consolidated Current Assets of such Person at such
date exceeds the Consolidated Current Liabilities of such Person at such date.
SECTION 1.2 COMPUTATION OF TIME PERIODS
In this Agreement, in the computation of periods of time from
a specified date to a later specified date, the word "from" means "from and
including" and the words "to" and "until" each mean "to but excluding" and the
word "through" means "to and including."
SECTION 1.3 ACCOUNTING TERMS AND PRINCIPLES
(a) Except as set forth below, all accounting terms not
specifically defined herein shall be construed in conformity with GAAP
and all accounting determinations required to be made pursuant hereto
(including for purpose of measuring compliance with Article V
(Financial Covenants)) shall, unless expressly otherwise provided
herein, be made in conformity with GAAP.
(b) If any change in the accounting principles used in the
preparation of the most recent Financial Statements referred to in
Section 6.1 (Financial Statements) is hereafter required or permitted
by the rules, regulations, pronouncements and opinions of the Financial
Accounting Standards Board or the American Institute of Certified
Public Accountants (or any successors thereto) and such change is
adopted by the Company with the agreement of the Company's Accountants
and results in a change in any of the calculations required by Article
V (Financial Covenants) or VIII (Negative Covenants) had such
accounting change not occurred, the parties hereto agree to enter into
negotiations in order to amend such provisions so as to equitably
reflect such change with the desired result that the criteria for
evaluating compliance with such covenants by the Company shall be the
same after such change as if such change had not been made; provided,
however, that no change in GAAP that would affect a calculation that
measures compliance with any covenant contained in Article V (Financial
Covenants) or VIII (Negative Covenants) shall be given effect until
such provisions are amended to reflect such changes in GAAP.
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CREDIT AGREEMENT
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(c) For purposes of making any of the financial covenant
calculations required by this Agreement to be made by the Company and
its Subsidiaries, all components of such calculations for any fiscal
period or portion thereof occurring prior to the Closing Date shall be
calculated by reference to the financial performance of the Acquired
Companies.
(d) For purposes of making all financial calculations to
determine compliance with Article V (Financial Covenants), all
components of such calculations shall be adjusted to include or
exclude, as the case may be, without duplication, such components of
such calculations attributable to any business or assets that have been
acquired by the Company or any of its Subsidiaries (including through
Permitted Acquisitions) after the first day of the applicable period of
determination and prior to the end of such period, as determined in
good faith by the Company on a Pro Forma Basis.
SECTION 1.4 CONVERSION OF FOREIGN CURRENCIES
(a) Financial Covenant Debt. Financial Covenant Debt
denominated in any currency other than Dollars shall be calculated
using the Dollar Equivalent thereof as of the date of the Financial
Statements on which such Financial Covenant Debt is reflected.
(b) Dollar Equivalents. The Administrative Agent shall
determine the Dollar Equivalent of any amount as required hereby, and a
determination thereof by the Administrative Agent shall be conclusive
absent manifest error. The Administrative Agent may, but shall not be
obligated to, rely on any determination by any Loan Party, the
Australian Agent or the Australian Collateral Trustee. The
Administrative Agent may determine or redetermine the Dollar Equivalent
of any amount on any date either in its own discretion or upon the
request of any Lender or Issuer.
(c) Rounding-Off. The Administrative Agent may set up
appropriate rounding off mechanisms or otherwise round-off amounts
hereunder to the nearest higher or lower amount in whole Dollar,
Australian Dollar or cent to ensure amounts owing by any party
hereunder or that otherwise need to be calculated or converted
hereunder are expressed in whole Dollars, whole Australian Dollars or
in whole cents, as may be necessary or appropriate.
SECTION 1.5 CERTAIN TERMS
(a) The terms "herein," "hereof" and "hereunder" and similar
terms refer to this Agreement as a whole and not to any particular
Article, Section, subsection or clause in, this Agreement.
(b) Unless otherwise expressly indicated herein, (i)
references in this Agreement to an Exhibit, Schedule, Article, Section,
clause or sub-clause refer to the appropriate Exhibit or Schedule to,
or Article, Section, clause or sub-clause in this Agreement and (ii)
the words "above" and "below", when following a reference to a clause
or a sub-clause of any Loan Document, refer to a clause or sub-clause
within, respectively, the same Section or clause.
(c) Each agreement defined in this Article I shall include all
appendices, exhibits and schedules thereto. Unless the prior written
consent of the Requisite Lenders is
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CREDIT AGREEMENT
SWIFT & COMPANY
required hereunder for an amendment, restatement, supplement or other
modification to any such agreement and such consent is not obtained,
references in this Agreement to such agreement shall be to such
agreement as so amended, restated, supplemented or modified.
(d) References in this Agreement to any statute shall be to
such statute as amended or modified from time to time and to any
successor legislation thereto, in each case as in effect at the time
any such reference is operative.
(e) The term "including" when used in any Loan Document means
"including without limitation" except when used in the computation of
time periods. "or", when used in any Loan Document, shall not be
exclusive.
(f) The terms "Administrative Agent", "Australian Agent",
"Australian Collateral Trustee", "Australian Dollar Lender",
"Documentation Agent", "Issuer", "Lender," "Revolving Credit Lender",
"Swing Loan Lender", "Syndication Agent" and "Term Loan Lender"
include, without limitation, their respective successors.
(g) (i) upon the appointment of any successor Administrative
Agent pursuant to Section 10.6 (Successor Administrative Agent,
Australian Agent and Australian Collateral Trustee), references to
Citicorp in Section 10.3 (Each Agent Individually) and to Citibank in
the definitions of Base Rate, Dollar Equivalent and Eurodollar Rate
shall be deemed to refer to the financial institution then acting as
the Administrative Agent or one of its Affiliates if such financial
institution so designates, (ii) upon the appointment of any successor
Australian Agent pursuant to Section 10.6 (Successor Administrative
Agent, Australian Agent and Australian Collateral Trustee), references
to Citibank Australia in Section 10.3 (Each Agent Individually) and in
the definitions of Australian ▇▇▇▇ Rate and Australian Short-Term Rate
shall be deemed to refer to the financial institution then acting as
the Australian Agent or one of its Affiliates if such financial
institution so designates and (iii) upon the appointment of any
successor Australian Agent pursuant to Section 10.6 (Successor
Administrative Agent, Australian Agent and Australian Collateral
Trustee), references to Citisecurities in Section 10.3 (Each Agent
Individually) shall be deemed to refer to the financial institution
then acting as the Australian Collateral Trustee or one of its
Affiliates if such financial institution so designates.
ARTICLE II
THE FACILITIES
SECTION 2.1 THE COMMITMENTS
(a) Revolving Dollar Loans. On the terms and subject to the
conditions contained in this Agreement, each Revolving Credit Lender
severally agrees to make loans in Dollars (each a "Revolving Dollar
Loan") to the Borrowers from time to time on any Business Day during
the period from the date hereof until the Revolving Credit Termination
Date in an aggregate principal amount at any time outstanding for all
such loans by such Revolving Credit Lender not to exceed such Revolving
Credit Lender's
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CREDIT AGREEMENT
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Revolving Credit Commitment; provided, however, that at no time shall
any Lender be obligated to make a Revolving Dollar Loan to any Borrower
in excess of such Lender's Ratable Portion of (i) the Aggregate
Available Revolving Credit at such time or (ii) the Available Borrowing
Base of such Borrower at such time. Within the limits set forth in this
clause (a), amounts of Revolving Loans repaid may be reborrowed under
this Section 2.1.
(b) Australian Dollar Loans. On the terms and subject to the
conditions contained in this Agreement, each Australian Dollar Lender
severally agrees to make loans in Australian Dollars (each an
"Australian Dollar Loan")) to the Australian Borrowers from time to
time on any Business Day during the period from the date hereof until
the Revolving Credit Termination Date in an aggregate principal amount
at any time outstanding for all such Australian Dollar Loans by such
Australian Dollar Lender the Dollar Equivalent of which shall not
exceed such Australian Dollar Lender's Australian Dollar Sublimit in
effect at such time; provided, however, that at no time shall any
Australian Dollar Lender be obligated to make an Australian Dollar Loan
in excess of such Australian Dollar Lender's Australian Dollar Ratable
Portion of (i) the Aggregate Available Revolving Credit at such time or
(ii) the Available Borrowing Base of such Australian Borrower at such
time. Within the limits set forth in this clause (b), amounts of
Australian Dollar Loans repaid may be reborrowed under this Section
2.1.
(c) Term Loan Commitments. On the terms and subject to the
conditions contained in this Agreement, each Term Loan Lender severally
agrees to make loans (each a "Term Loan") in Dollars to the Company on
the Closing Date, in an amount not to exceed such Lender's Term Loan
Commitment. Amounts of Term Loans repaid or prepaid may not be
reborrowed.
(d) Australian Borrowers. Anything else in this Agreement to
the contrary notwithstanding, upon the occurrence (if any) of the
Australian Asset Sale, the Australian Borrowers shall cease to be
Borrowers hereunder (and shall no longer be able to make any Borrowings
or Swing Loans hereunder); provided, however, that the foregoing shall
not operate to discharge any Obligation either may have to any Secured
Party hereunder or under any other Loan Document.
SECTION 2.2 BORROWING PROCEDURES
(a) Each Revolving Credit Borrowing shall be made on notice
given to the appropriate Disbursement Agent by the Borrower requesting
such Revolving Credit Borrowing and not later than 11:00 a.m. (Local
Time) (or, in the case of Australian Short-Term Loans, 10:30 a.m.
(Local Time)) (i) on the Business Day of, in the case of a Revolving
Credit Borrowing of Variable Rate Loans and (ii) two Business Days
prior to, in the case of a Revolving Credit Borrowing of Fixed Rate
Loans, the date of the proposed Revolving Credit Borrowing. Each such
notice shall be in substantially the form of Exhibit C-1 (Form of
Notice of Borrowing in Dollars) (a "Notice of Dollar Borrowing") or, in
the case of an Australian Dollar Borrowing, Exhibit C-2 (Form of Notice
of Australian Dollar Borrowing) (a "Notice of Australian Dollar
Borrowing" and, together with a Notice of Dollar Borrowing, a "Notice
of Borrowing"), executed by the Borrower requesting such Revolving
Credit Borrowing and specifying (A) the date of such proposed Revolving
Credit Borrowing, (B) the aggregate amount of such proposed Revolving
Credit Borrowing, (C) what portions (if any) of the proposed Revolving
Credit
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CREDIT AGREEMENT
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Borrowing will be of Variable Rate Loans or Fixed Rate Loans, (D) the
initial Interest Periods for any such Fixed Rate Loans and (E) the
Available Borrowing Base of such Borrower and the Aggregate Available
Revolving Credit (in each case after giving effect to the proposed
Revolving Credit Borrowing).
(b) Revolving Dollar Loans shall be made in Dollars as Base
Rate Loans unless, subject to Section 2.14 (Special Provisions
Governing External Rate Loans), the Notice of Borrowing specifies that
all or a portion thereof shall be Eurodollar Rate Loans.
Notwithstanding anything to the contrary contained in Section 2.3(a)
(Swing Loans), if any Notice of Dollar Borrowing requests a Revolving
Credit Dollar Borrowing of Base Rate Loans, the Swing Loan Lender may
make a Swing Loan available to the Borrower that requested such
Revolving Credit Dollar Borrowing in an aggregate amount not to exceed
such proposed Revolving Credit Dollar Borrowing, and the aggregate
amount of the corresponding proposed Revolving Credit Dollar Borrowing
shall be reduced accordingly by the principal amount of such Swing
Loan. Australian Dollar Loans shall be made as Australian ▇▇▇▇ Rate
Loans with an Interest Period of one month unless, subject to Section
2.14 (Special Provisions Governing External Rate Loans), the Notice of
Borrowing specifies that all or a portion thereof shall be made as
Australian Short-Term Loans or Australian ▇▇▇▇ Rate Loans with
different Interest Periods. Each Revolving Credit Borrowing in any
currency shall be in an aggregate amount equal to one of the Currency
Thresholds in such currency.
(c) The Term Loan Borrowing shall be made upon receipt of a
Notice of Borrowing given by the Company to the Administrative Agent
not later than 11:00 a.m. (Local Time) (i) on the same Business Day, in
the case of a Term Loan Borrowing of Base Rate Loans and (ii) two
Business Days, in the case of a Term Loan Borrowing of Eurodollar Rate
Loans, prior to the Closing Date. The Notice of Dollar Borrowing
therefor shall specify (A) the Closing Date, (B) the aggregate amount
of such proposed Term Loan Borrowing, (C) what portions (if any) of the
proposed Term Loan Borrowing will be of Base Rate Loans or Eurodollar
Rate Loans, and (D) the initial Interest Periods for any such
Eurodollar Rate Loans. The Term Loans shall be made as Base Rate Loans
unless (subject to Section 2.14 (Special Provisions Governing External
Rate Loans)) the Notice of Borrowing specifies that all or a portion
thereof shall be Eurodollar Rate Loans.
(d) The appropriate Disbursement Agent shall give to each
Lender in the applicable Facility prompt notice of the Disbursement
Agent's receipt of a Notice of Borrowing for such Facility and, if
Fixed Rate Loans are properly requested in such Notice of Borrowing,
the applicable interest rate determined pursuant to Section 2.14(a)
(Determination of External Rate). Each such Lender shall, before 2:00
p.m. (Local Time) (or, in the case of Australian Dollar Loans, 11:00
a.m. (Local Time)) on the date of the proposed Borrowing for such
Facility, make available to the Disbursement Agent at its address
referred to in Section 11.8 (Notices, Etc.), in immediately available
funds, such Lender's Ratable Portion or, as the case may be, Australian
Dollar Ratable Portion of such proposed Borrowing; provided, however,
that, in the case of Australian Dollar Loans, the Australian Agent may,
at its option, request that the Australian Dollar Lenders make such
funds available to the applicable Australian Borrower directly pursuant
to the following sentence. Upon fulfillment (or due waiver in
accordance with Section 11.1 (Amendments, Waivers, Etc.)) (i) on the
Closing Date, of the applicable conditions set forth in Section 3.1
(Conditions Precedent to Initial Loans and Letters of Credit) and
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CREDIT AGREEMENT
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(ii) at any time (including the Closing Date), of the applicable
conditions set forth in Section 3.2 (Conditions Precedent to Each Loan
and Letter of Credit), and after such Disbursement Agent's receipt of
such funds, such Disbursement Agent (or, in the case of Australian
Dollar Loans, if the Australian Agent has exercised its option granted
in the proviso of the previous sentence, each Australian Dollar Lender)
shall make such funds available to the Borrower that requested such
Borrowing (x) in the case of Loans denominated in Dollars, at an
account located in the United States (except as otherwise may be agreed
by such Disbursement Agent) and (y) in the case of Loans denominated in
Australian Dollars, at an account of an Australian Borrower in
Australia (except as otherwise may be agreed by such Disbursement
Agent) that shall not, in any case, be located at the branch of an
Australian Bank in New South Wales or Victoria, Australia.
(e) Unless the applicable Disbursement Agent shall have
received notice from a Lender in the applicable Facility prior to the
date (and, in the case of Borrowings whose notice was received on the
same Business Day, prior to the time set forth in clause (d) above) of
any proposed Borrowing that such Lender will not make available to such
Disbursement Agent such Lender's Ratable Portion or, as the case may
be, Australian Dollar Ratable Portion of such Borrowing (or any portion
thereof), such Disbursement Agent may assume that such Lender has made
such Ratable Portion or Australian Dollar Ratable Portion available to
such Disbursement Agent on the date of such Borrowing in accordance
with this Section 2.2 and such Disbursement Agent may, in reliance upon
such assumption, make available a corresponding amount on such date to
the Borrower that requested such Borrowing. If and to the extent that
such Lender is required to make available, and shall not have so made
available, such Ratable Portion or Australian Dollar Ratable Portion to
such Disbursement Agent, such Lender agrees to repay to such
Disbursement Agent forthwith on demand such corresponding amount
together with interest thereon, for each day from the date such amount
is made available to such Borrower until the date such amount is repaid
to such Disbursement Agent, at the Interbank Rate for the first
Business Day and, thereafter, at the interest rate applicable at the
time to the Loans comprising such Borrowing. Such Borrower agrees to
repay, on demand (and together with interest thereon for each day from
the date such amount is made available to such Borrower until the date
such amount is repaid to such Disbursement Agent at the rate of
interest applicable at the time to the Loans comprising such Borrowing)
to such Disbursement Agent such corresponding amount if such Lender has
not repaid such corresponding amount to such Disbursement Agent within
three Business Days after the date such Disbursement Agent made such
corresponding amount available to such Borrower. If such Lender shall
repay to such Disbursement Agent such corresponding amount, such
corresponding amount so repaid shall constitute such Lender's Loan as
part of such Borrowing for purposes of this Agreement. If such Borrower
shall repay to such Disbursement Agent such corresponding amount, such
payment shall not relieve such Lender of any obligation it may have
hereunder to such Borrower.
(f) The failure of any Lender to make on the date specified
any Loan or any payment required by it (such Lender being a
"Non-Funding Lender"), including any payment in respect of its
participation in Swing Loans and Letter of Credit Obligations, shall
not relieve any other Lender of its obligations to make such Loan or
payment on such date but no such other Lender shall be responsible for
the failure of any Non-Funding Lender to make a Loan or payment
required under this Agreement.
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CREDIT AGREEMENT
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SECTION 2.3 SWING LOANS
(a) On the terms and subject to the conditions contained in
this Agreement, the Swing Loan Lender may, in its sole discretion,
make, in Dollars, loans (each a "Swing Loan") otherwise available to
the Borrowers under the Dollar Revolving Credit Facility from time to
time on any Business Day during the period from the date hereof until
the Revolving Credit Termination Date in an aggregate principal amount
at any time outstanding (together with the aggregate outstanding
principal amount of any other Loan made by the Swing Loan Lender
hereunder in its capacity as the Swing Loan Lender) not to exceed the
Swing Loan Sublimit; provided, however, that at no time shall the Swing
Loan Lender make any Swing Loan to any Borrower in excess of (i) the
Aggregate Available Revolving Credit at such time or (ii) the Available
Borrowing Base of such Borrower at such time. Each Swing Loan shall be
a Base Rate Loan and must be repaid in full upon any Revolving Credit
Borrowing hereunder and shall in any event mature no later than the
Revolving Credit Termination Date. Within the limits set forth in the
first sentence of this clause (a), amounts of Swing Loans repaid may be
reborrowed under this clause (a).
(b) In order to request a Swing Loan, a Borrower shall
telecopy (or forward by electronic mail or similar means) to the
Administrative Agent a duly completed request in substantially the form
of Exhibit D (Form of Swing Loan Request), setting forth the requested
amount and date of such Swing Loan (a "Swing Loan Request"), to be
received by the Administrative Agent not later than 2:00 p.m. (Local
Time) on the day of the proposed borrowing. The Administrative Agent
shall promptly notify the Swing Loan Lender of the details of the
requested Swing Loan. Subject to the terms of this Agreement, the Swing
Loan Lender may make a Swing Loan available to the Administrative Agent
and, in turn, the Administrative Agent shall make such amounts
available on the date of the relevant Swing Loan Request to such
Borrower at an account located in the United States. The Swing Loan
Lender shall not make any Swing Loan in the period commencing on the
first Business Day after it receives written notice from the
Administrative Agent or any Revolving Credit Lender that one or more of
the conditions precedent contained in Section 3.2 (Conditions Precedent
to Each Loan and Letter of Credit) shall not on such date be satisfied,
and ending when such conditions are satisfied. The Swing Loan Lender
shall not otherwise be required to determine that, or take notice
whether, the conditions precedent set forth in Section 3.2 (Conditions
Precedent to Each Loan and Letter of Credit) have been satisfied in
connection with the making of any Swing Loan.
(c) The Swing Loan Lender shall notify the Administrative
Agent in writing (which writing may be a telecopy or electronic mail)
weekly, by no later than 10:00 a.m. (Local Time) on the first Business
Day of each week, of the aggregate principal amount of its Swing Loans
then outstanding.
(d) The Swing Loan Lender may demand at any time that each
Revolving Credit Lender pay to the Administrative Agent, for the
account of the Swing Loan Lender, in the manner provided in clause (e)
below, such Revolving Credit Lender's Ratable Portion of all or a
portion of the outstanding Swing Loans, which demand shall be made
through the Administrative Agent, shall be in writing and shall specify
the outstanding principal amount of Swing Loans demanded to be paid.
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(e) The Administrative Agent shall forward each notice
referred to in clause (c) above and each demand referred to in clause
(d) above to each Revolving Credit Lender on the day such notice or
such demand is received by the Administrative Agent (except that any
such notice or demand received by the Administrative Agent after 2:00
p.m. (Local Time) on any Business Day or any such demand received on a
day that is not a Business Day shall not be required to be forwarded to
the Revolving Credit Lenders by the Administrative Agent until the next
succeeding Business Day (Local Time)), together with a statement
prepared by the Administrative Agent specifying the amount of each
Revolving Credit Lender's Ratable Portion of the aggregate principal
amount of the Swing Loans stated to be outstanding in such notice or
demanded to be paid pursuant to such demand, and, notwithstanding
whether or not the conditions precedent set forth in Sections 3.2
(Conditions Precedent to Each Loan and Letter of Credit) and 2.1(a)
(The Commitments) shall have been satisfied (which conditions precedent
the Revolving Credit Lenders hereby irrevocably waive), each Revolving
Credit Lender shall, before 11:00 a.m. (Local Time) on the Business Day
next succeeding the date of such Revolving Credit Lender's receipt of
such notice or demand, make available to the Administrative Agent, in
immediately available funds, for the account of the Swing Loan Lender,
the amount specified in such statement. Upon such payment by a
Revolving Credit Lender, such Revolving Credit Lender shall, except as
provided in clause (f) below, be deemed to have made a Revolving Loan
to the Borrower owing such Swing Loans. The Administrative Agent shall
use such funds to repay the Swing Loans to the Swing Loan Lender. To
the extent that any Revolving Credit Lender fails to make such payment
available to the Administrative Agent for the account of the Swing Loan
Lender, the Borrower owing such Swing Loans shall repay such Swing
Loans on demand.
(f) Upon the occurrence of a Default under Section 9.1(f)
(Events of Default), each Revolving Credit Lender shall acquire,
without recourse or warranty, an undivided participation in each Swing
Loan otherwise required to be repaid by such Revolving Credit Lender
pursuant to clause (e) above, which participation shall be in a
principal amount equal to such Revolving Credit Lender's Ratable
Portion of such Swing Loan, by paying to the Swing Loan Lender on the
date on which such Revolving Credit Lender would otherwise have been
required to make a payment in respect of such Swing Loan pursuant to
clause (e) above, in immediately available funds, an amount equal to
such Revolving Credit Lender's Ratable Portion of such Swing Loan. If
all or part of such amount is not in fact made available by such
Revolving Credit Lender to the Swing Loan Lender on such date, the
Swing Loan Lender shall be entitled to recover any such unpaid amount
on demand from such Revolving Credit Lender together with interest
accrued from such date at the Interbank Rate for the first Business Day
after such payment was due and thereafter at the rate of interest then
applicable to Base Rate Loans.
(g) From and after the date on which any Revolving Credit
Lender (i) is deemed to have made a Revolving Loan pursuant to clause
(e) above with respect to any Swing Loan or (ii) purchases an undivided
participation interest in a Swing Loan pursuant to clause (f) above,
the Swing Loan Lender shall promptly distribute to such Revolving
Credit Lender such Revolving Credit Lender's Ratable Portion of all
payments of principal of and interest received by the Swing Loan Lender
on account of such Swing Loan other than those received from a
Revolving Credit Lender pursuant to clause (e) or (f) above.
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CREDIT AGREEMENT
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SECTION 2.4 LETTERS OF CREDIT
(a) On the terms and subject to the conditions contained in
this Agreement, each Issuer agrees to Issue at the request of any
Borrower and for the account of such Borrower one or more letters of
credit or bank guarantees from time to time on any Business Day during
the period commencing on the Closing Date and ending on the earlier of
the Revolving Credit Termination Date and 30 days prior to the
Scheduled Termination Date; provided, however, that no Issuer shall be
under any obligation to Issue (and, upon the occurrence of any of the
events described in clauses (ii), (iii), (iv)(A), (v) and (vi) below,
shall not Issue) any Letter of Credit upon the occurrence of any of the
following:
(i) any order, judgment or decree of any Governmental
Authority or arbitrator shall purport by its terms to enjoin or
restrain such Issuer from Issuing such Letter of Credit or any
Requirement of Law applicable to such Issuer or any request or
directive (whether or not having the force of law) from any
Governmental Authority with jurisdiction over such Issuer shall
prohibit, or request that such Issuer refrain from, the Issuance of
letters of credit or bank guarantees generally or such Letter of Credit
in particular or shall impose upon such Issuer with respect to such
Letter of Credit any restriction or reserve or capital requirement (for
which such Issuer is not otherwise compensated) not in effect on the
date of this Agreement or result in any unreimbursed loss, cost or
expense that was not applicable, in effect or known to such Issuer as
of the date of this Agreement and that such Issuer in good ▇▇▇▇▇ ▇▇▇▇▇
material to it;
(ii) after giving effect to the Issuance of such
Letter of Credit, (A) the aggregate Revolving Credit Outstandings of
the Borrowers would exceed the Aggregate Maximum Revolving Credit at
such time or (B) the Revolving Credit Outstandings of the Borrower
requesting such Letter of Credit would exceed the Maximum Available
Borrowing Base of such Borrower at such time;
(iii) after giving effect to the Issuance of such
Letter of Credit, the Letter of Credit Obligations at such time exceeds
the Letter of Credit Sublimit;
(iv) (A) any fees due in connection with a requested
Issuance have not been paid, (B) such Letter of Credit is requested to
be Issued in a form that is not acceptable to such Issuer or (C) the
Issuer for such Letter of Credit shall not have received, in form and
substance reasonably acceptable to it and, if applicable, duly executed
by such Borrower, standard (but in any event commercially reasonable)
documentation (collectively, a "Letter of Credit Reimbursement
Agreement") such Issuer requires in the ordinary course of business
(which may include, if requested by such Issuer, a letter of credit
reimbursement agreement) to be completed or delivered by Letter of
Credit applicants prior to issuing a Letter of Credit;
(v) such Letter of Credit is requested to be
denominated in any Alternative Currency and the Applicable Lending
Office of the Issuer receives written notice from the applicable
Disbursement Agent at or before 11:00 a.m. (Local Time) on the date of
the proposed Issuance of such Letter of Credit from such Applicable
Lending Office that, immediately after giving effect to the Issuance of
such Letter of Credit, all Letter of Credit Obligations at such time in
respect of Letters of Credit denominated in any Alternative Currency
would exceed $40,000,000;
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CREDIT AGREEMENT
SWIFT & COMPANY
(vi) such Letter of Credit is requested to be
denominated in any currency other than Dollars or an Alternative
Currency;
(vii) such Letter of Credit is a bank guarantee and
(A) does not have a maximum face amount, (B) is requested by the
Company, (C) is requested to be Issued by an Issuer that does not have
an Australian Lending Office or is not requested to be issued from the
Australian Lending Office of an Issuer or (D) is requested to be Issued
by any Issuer that does not have the capacity to issue bank guarantees
or has otherwise notified any Borrower on or prior to becoming an
Issuer that it will not be able to Issue bank guarantees; or
(viii) such Letter of Credit is a Government Bank
Guarantee and the Issuer receives written notice from the
Administrative Agent or the Australian Agent at or before 11:00 a.m.
(Sydney Time) on the date of the proposed Issuance of such Government
Bank Guarantee that, immediately after giving effect to the Issuance of
such Government Bank Guarantee, all Letter of Credit Obligations at
such time in respect of Government Bank Guarantees would exceed
A$35,000,000.
None of the Lenders (other than the Issuers in their capacity as such) shall
have any obligation to Issue any Letter of Credit.
(b) In no event shall the expiration date of any Letter of
Credit (other than a Government Bank Guarantee) (i) be more than one
year after the date of issuance thereof or (ii) be less than 30 days
prior to the Scheduled Termination Date; provided, however, that (x)
any Letter of Credit with a term less than or equal to one year may
provide for the renewal thereof for additional periods less than or
equal to one year, as long as, on or before the expiration of such term
and each such period, the Issuer of such Letter of Credit shall have
the option to prevent such renewal and (y) no such term or period or
renewal of either of them shall extend beyond the expiry date referred
to in clause (ii) above.
(c) In connection with the Issuance of each Letter of Credit,
the Borrower requesting such Letter of Credit shall give the relevant
Disbursement Agent and the Applicable Lending Office of the relevant
Issuer at least two Business Days' (Local Time) prior written notice,
in substantially the form of Exhibit E (Form of Letter of Credit
Request) (or in such other written or electronic form as is acceptable
to the Issuer), of the requested Issuance of such Letter of Credit (a
"Letter of Credit Request"). Such notice shall be irrevocable and shall
specify (i) the Issuer of such Letter of Credit, (ii) the currency of
issuance and face amount of the Letter of Credit requested (the Dollar
Equivalent of which shall not be less than $50,000 (unless otherwise
agreed to by the Issuer)), (iii) whether such Letter of Credit is a
bank guarantee or a letter of credit and, if a letter of credit
denominated in Australian Dollars, whether such Letter of Credit is
requested to be issued from the Domestic Lending Office, Eurodollar
Lending Office or Australian Lending Office (if any) of such Issuer,
(iv) the requested date of Issuance for such Letter of Credit, (v) the
date on which such Letter of Credit is to expire (which date shall be a
Business Day), (vi) in the case of an issuance, the Persons for whose
benefit the requested Letter of Credit is to be issued. Such Letter of
Credit Request, to be effective, must be received by the relevant
Issuer and Disbursement Agent not later than 11:00 a.m. (Local Time) on
the second Business Day prior to the requested Issuance of such Letter
of Credit.
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CREDIT AGREEMENT
SWIFT & COMPANY
(d) Subject to the satisfaction of the conditions set forth in
this Section 2.4, the relevant Issuer shall, on the requested date,
Issue a Letter of Credit on behalf of the Borrower requesting such
Letter of Credit in accordance with such Issuer's usual and customary
business practices. In the case of an issuance of a Letter of Credit,
if such Letter of Credit is requested by any Australian Borrower to be
issued in Australian Dollars from an Australian Lending Office of such
Issuer, such Letter of Credit shall be issued from such Australian
Lending Office (if such Issuer has an Australian Lending Office) to the
extent such Issuer is permitted to issue and maintain such Letter of
Credit under applicable Requirements of Law. No Issuer shall Issue any
Letter of Credit in the period commencing on the first Business Day
after it receives written notice from any Revolving Credit Lender that
one or more of the conditions precedent contained in Section 3.2
(Conditions Precedent to Each Loan and Letter of Credit) or clause (a)
above (other than those conditions set forth in clauses (a)(i), (a)(iv)
(provided, however, that clause (A) thereof shall be included in this
exclusion only to the extent such clause relates to fees owing to the
Issuer for such Letter of Credit and Affiliates thereof) and (a)(vii)
(other than clause (A) thereof)) shall not on such date be satisfied or
duly waived and ending when such conditions are satisfied or duly
waived. No Issuer shall otherwise be required to determine that, or
take notice whether, the conditions precedent set forth in Section 3.2
(Conditions Precedent to Each Loan and Letter of Credit) have been
satisfied in connection with the Issuance of any Letter of Credit.
(e) Each Issuer shall comply with the following:
(i) give the Administrative Agent written notice (or
telephonic notice confirmed promptly thereafter in writing), which
writing may be a telecopy or electronic mail, of the Issuance or
renewal of any Letter of Credit issued by it, of all drawings under any
Letter of Credit issued by it and of the payment (or the failure to pay
when due) by any Borrower of any Reimbursement Obligation of such
Borrower when due (which notice the Administrative Agent shall promptly
transmit by telecopy, electronic mail or similar transmission to each
Revolving Credit Lender);
(ii) upon the request of any Revolving Credit Lender,
furnish to such Revolving Credit Lender copies of any Letter of Credit
Reimbursement Agreement to which such Issuer is a party and such other
documentation as may reasonably be requested by such Revolving Credit
Lender; and
(iii) no later than 10 Business Days following the
last day of each calendar month, provide to the Administrative Agent
(and the Administrative Agent shall provide a copy to each Revolving
Credit Lender requesting the same) and the Company separate schedules
for Documentary Letters of Credit and Standby Letters of Credit issued
by it, in form and substance reasonably satisfactory to the
Administrative Agent, setting forth the aggregate Letter of Credit
Obligations of each Borrower, in each case outstanding at the end of
each month, and any information reasonably requested by the Company or
the Administrative Agent relating thereto.
(f) Immediately upon the issuance by an Issuer of a Letter of
Credit in accordance with the terms and conditions of this Agreement,
such Issuer shall be deemed to have sold and transferred to each
Revolving Credit Lender, and each Revolving Credit Lender shall be
deemed irrevocably and unconditionally to have purchased and received
from such Issuer, without recourse or warranty, an undivided interest
and participation, to
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CREDIT AGREEMENT
SWIFT & COMPANY
the extent of such Revolving Credit Lender's Ratable Portion in such
Letter of Credit and the obligations with respect thereto of the
Borrower for whose account such Letter of Credit was Issued (including
all Letter of Credit Obligations with respect thereto) and any security
therefor and guaranty pertaining thereto.
(g) The Borrower at whose request any such Letter of Credit
has been issued agrees to pay in immediately available funds in the
currency applicable to such Reimbursement Obligation to the Issuer of
such Letter of Credit the amount of all Reimbursement Obligations of
such Borrower owing to such Issuer under such Letter of Credit no later
than the date that is the next succeeding Business Day after the
Company receives written notice from such Issuer that payment has been
made under such Letter of Credit (the "Reimbursement Date"),
irrespective of any claim, set-off, defense or other right that any
Borrower may have at any time against such Issuer or any other Person.
In the event that any Issuer makes any payment under any Letter of
Credit and the Borrower for whose account such Letter of Credit was
issued shall not have repaid such amount to such Issuer pursuant to
this clause (g) or any such payment by such Borrower is rescinded or
set aside for any reason, each such Reimbursement Obligation shall be
payable on demand with interest thereon computed (i) from the date on
which such Reimbursement Obligation arose to the Reimbursement Date, at
the rate of interest applicable during such period to Revolving Loans
that are Base Rate Loans and (ii) from the Reimbursement Date until the
date of repayment in full, at the rate of interest applicable during
such period to past due Revolving Loans that are Base Rate Loans, and
such Issuer shall promptly notify the Administrative Agent in the
manner specified by Section 11.8 (Notices, Etc.), which shall promptly
notify each Revolving Credit Lender of such failure, and each such
Revolving Credit Lender shall promptly and unconditionally pay to the
Administrative Agent for the account of such Issuer the amount of such
Revolving Credit Lender's Ratable Portion of such payment (or the
Dollar Equivalent thereof if such payment was made in any currency
other than Dollars) in immediately available Dollars. If the
Administrative Agent so notifies any such Revolving Credit Lender prior
to 11:00 a.m. (New York time) on any Business Day, such Revolving
Credit Lender shall make available to the Administrative Agent for the
account of such Issuer its Ratable Portion of the amount of such
payment on such Business Day in immediately available funds. Upon such
payment by any such Revolving Credit Lender, such Revolving Credit
Lender shall, except during the continuance of a Default or Event of
Default under Section 9.1(f) (Events of Default) and notwithstanding
whether or not the conditions set forth in Sections 3.2 (Conditions
Precedent to Each Loan and Letter of Credit) and 2.1(a) (The
Commitments) shall have been satisfied (which conditions precedent the
Revolving Credit Lenders hereby irrevocably waive), be deemed to have
made a Revolving Loan to the Borrower for whose account such Letter of
Credit was issued in the principal amount of such payment. Whenever any
Issuer receives from any Borrower a payment of a Reimbursement
Obligation as to which the Administrative Agent has received for the
account of such Issuer any payment from any Revolving Credit Lender
pursuant to this clause (g), such Issuer shall pay over to the
Administrative Agent any amount received in excess of such
Reimbursement Obligation and the Administrative Agent shall promptly
pay over to each such Revolving Credit Lender, in immediately available
funds, such Revolving Credit Lender's Ratable Portion of any amount
received by the Administrative Agent to the extent such amount would
be, if received by such Issuer, in excess of such Reimbursement
Obligation, such amount to be
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CREDIT AGREEMENT
SWIFT & COMPANY
adjusted, if necessary, to reflect the respective amounts the Revolving
Credit Lenders have paid in respect of such Reimbursement Obligation.
(h) Each payment of the Issuer under any Letter of Credit
issued at the request of any Australian Borrower shall constitute a
subscription by the Issuer for Australian Debentures issued by such
Australian Borrower for an aggregate face amount thereof equal to such
payment on the date of such payment (with no original issue discount),
and in the same currency and otherwise with the same interest rate,
repayment and other terms as those applicable to such Australian
Borrower's Reimbursement Obligations in respect of such Letter of
Credit. Each such Australian Debenture shall be issued by such
Australian Borrower on the date the payment is made by the Issuer under
such Letter of Credit by entry in the Register, and no certificate will
be issued in respect of such Australian Debentures, except as may
otherwise be required by any Requirement of Law. If any Australian
Debentures shall be issued with respect to any such Reimbursement
Obligation, such Reimbursement Obligation and Indebtedness shall be one
and the same Indebtedness and shall not constitute separate obligations
thereof.
(i) If and to the extent such Revolving Credit Lender shall
not have so made its Ratable Portion of the amount of the payment
required by clause (g) above available to the Administrative Agent for
the account of such Issuer, such Revolving Credit Lender agrees to pay
to the Administrative Agent for the account of such Issuer forthwith on
demand any such unpaid amount together with interest thereon, for the
first Business Day after payment was first due at the Interbank Rate
and, thereafter, on each day until such amount is repaid to the
Administrative Agent for the account of such Issuer, at a rate per
annum equal to the rate applicable to Base Rate Loans under the
Revolving Credit Facility.
(j) Each Borrower's obligation to pay its Reimbursement
Obligations and the obligations of the Revolving Credit Lenders to make
payments to the Administrative Agent for the account of the Issuers
with respect to Letters of Credit shall be absolute, unconditional and
irrevocable and shall be performed strictly in accordance with the
terms of this Agreement, under any and all circumstances whatsoever,
including the occurrence of any Default or Event of Default, and
irrespective of any of the following:
(i) any lack of validity or enforceability of any
Letter of Credit or any Loan Document, or any term or provision
therein;
(ii) any amendment or waiver of or any consent to
departure from all or any of the provisions of any Letter of Credit or
any Loan Document;
(iii) the existence of any claim, set off, defense or
other right that any Borrower, any other party guaranteeing, or
otherwise obligated with, any Borrower, any Subsidiary or other
Affiliate thereof or any other Person may at any time have against the
beneficiary under any Letter of Credit, any Issuer, any Agent, Lender
or any other Person, whether in connection with this Agreement, any
other Loan Document or any other related or unrelated agreement or
transaction;
(iv) any draft or other document presented under a
Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect;
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CREDIT AGREEMENT
SWIFT & COMPANY
(v) payment by the Issuer under a Letter of Credit
against presentation of a draft or other document that does not comply
with the terms of such Letter of Credit; provided, however, that this
provision shall not affect any rights the Borrower may otherwise have
against the Issuer of such Letter of Credit; and
(vi) any other act or omission to act or delay of any
kind of any Issuer, Lender, Agent or any other Person or any other
event or circumstance whatsoever, whether or not similar to any of the
foregoing, that might, but for the provisions of this Section 2.4,
constitute a legal or equitable discharge of any Borrower's obligations
hereunder.
Any action taken or omitted to be taken by the relevant Issuer under or in
connection with any Letter of Credit, if taken or omitted in the absence of
gross negligence or willful misconduct, shall not put such Issuer under any
resulting liability to any Borrower or any Lender. In determining whether drafts
and other documents presented under a Letter of Credit comply with the terms
thereof, the Issuer may accept documents that appear on their face to be in
order, without responsibility for further investigation, regardless of any
notice or information to the contrary and, in making any payment under any
Letter of Credit, the Issuer may rely exclusively on the documents presented to
it under such Letter of Credit as to any and all matters set forth therein,
including reliance on the amount of any draft presented under such Letter of
Credit, whether or not the amount due to the beneficiary thereunder equals the
amount of such draft and whether or not any document presented pursuant to such
Letter of Credit proves to be insufficient in any respect, if such document on
its face appears to be in order, and whether or not any other statement or any
other document presented pursuant to such Letter of Credit proves to be forged
or invalid or any statement therein proves to be inaccurate or untrue in any
respect whatsoever, and any noncompliance in any immaterial respect of the
documents presented under such Letter of Credit with the terms thereof shall, in
each case, be deemed not to constitute willful misconduct or gross negligence of
the Issuer. In the event of any conflict between the terms of any Letter of
Credit Reimbursement Agreement and this Agreement, the terms of this Agreement
shall govern.
(k) Schedule 2.4 (Existing Letters of Credit) contains a
schedule of certain letters of credit issued prior to the Closing Date
by JPMorgan for the account of a Borrower. On the Closing Date (i) such
letters of credit, to the extent outstanding, shall be automatically
and without further action by the parties thereto converted to Letters
of Credit issued pursuant to this Section 2.4 for the account of the
applicable Borrower and subject to the provisions hereof, and for this
purpose the fees specified in Section 2.12(b) (Fees) shall be payable
(in substitution for any fees set forth in the applicable letter of
credit reimbursement agreements or applications relating to such
letters of credit) as if such letters of credit had been issued on the
Closing Date, (ii) the issuers of such Letters of Credit shall be
deemed to be "Issuers" hereunder solely for the purpose of maintaining
such letters of credit, (iii) the Dollar Equivalent of the face amount
of such letters of credit shall be included in the calculation of
Letter of Credit Obligations and (iv) all liabilities of the Borrowers
with respect to such letters of credit shall constitute Obligations. No
letter of credit converted in accordance with this clause (k) shall be
amended, extended or renewed without the prior written consent of the
Administrative Agent.
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CREDIT AGREEMENT
SWIFT & COMPANY
SECTION 2.5 REDUCTION AND TERMINATION OF THE REVOLVING CREDIT
COMMITMENTS
(a) The Company may, upon at least three Business Days' prior
notice to the Administrative Agent, terminate in whole or reduce in
part ratably the unused portions of the Revolving Credit Commitments of
the Revolving Credit Lenders, and the Revolving Credit Commitment of
each Revolving Credit Lender shall be reduced by its Ratable Portion of
such amount; provided, however, that each partial reduction of such
Revolving Credit Commitments shall be in an aggregate amount equal to
one of the Currency Thresholds for the currency in which such Revolving
Credit Commitments shall be denominated; and provided, further, that,
to the extent, after giving effect to such termination of reduction,
the aggregate Revolving Credit Commitments shall be lower than the
aggregate of all Australian Dollar Sublimits in effect at such time,
(i) the Maximum Australian Dollar Sublimit shall be reduced to equal
the aggregate then effective Revolving Credit Commitments and (ii) the
unused portions of the Australian Dollar Sublimits of the Australian
Dollar Lenders shall also be reduced to the extent of such reduction in
the Maximum Australian Dollar Sublimit in accordance with each such
Lender's Australian Dollar Ratable Portion.
(b) The then current Revolving Credit Commitments shall be
reduced on each date on which a prepayment of Revolving Loans owing by
the Company or Swing Loans is made pursuant to Section 2.9 (Mandatory
Prepayments) from the Net Cash Proceeds of the Australian Asset Sale
(and from mandatory prepayments of the advances under the Australian
Intercompany Credit Agreement resulting from the receipt of such Net
Cash Proceeds) by the amount of such prepayment, and the Revolving
Credit Commitment of each Revolving Credit Lender shall be reduced by
its Ratable Portion of such amount; provided, however, that in no event
shall the Revolving Credit Commitments be reduced to an amount lower
than the Borrowing Base of the Company on the date of the receipt of
such Net Cash Proceeds. The Australian Dollar Sublimits of each
Australian Dollar Lender shall be reduced to zero on the date of the
Australian Asset Sale.
SECTION 2.6 REPAYMENT OF LOANS
(a) Each Borrower promises to repay in the currency such Loans
are denominated the entire unpaid principal amount of the Revolving
Loans and the Swing Loans owing by it on the Scheduled Termination Date
or earlier, if otherwise required by the terms hereof.
(b) The Company promises to repay in Dollars the principal
amount of the Term Loans at the dates and in the amounts as follows:
(i) $500,000, payable on every March 31, June 30, September 30 and
December 31, beginning on December 31, 2002 until September 30, 2007,
and (ii) $47,500,000, payable on each of December 31, 2007, March 31,
2008, June 30, 2008 and on the Term Loan Maturity Date; provided,
however, that the Company agrees to repay on the Term Loan Maturity
Date the entire unpaid principal amount of the Term Loans.
(c) Notwithstanding anything herein to the contrary, on the
date of the consummation of the Australian Asset Sale, all Loans and
other Obligations owing by the Australian Borrowers shall become due
and payable and shall be paid in accordance with Section 8.4(j) (Asset
Sales).
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CREDIT AGREEMENT
SWIFT & COMPANY
(d) Any repayment of a Loan owing by an Australian Borrower
shall constitute a repayment of the Australian Debentures corresponding
thereto and any repayment of an Australian Debenture shall constitute a
repayment of the Loans corresponding thereto.
SECTION 2.7 EVIDENCE OF DEBT
(a) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing Indebtedness of each
Borrower to such Lender resulting from each Loan of such Lender from
time to time, including the amounts of principal and interest payable
and paid to such Lender from time to time under this Agreement.
(b) The applicable Disbursement Agent shall maintain accounts
in accordance with its usual practice in which it shall record (i) the
amount of each Loan made and, if a Fixed Rate Loan, the Interest Period
and currency applicable thereto, (ii) the amount of any principal or
interest due and payable by each Borrower to each Lender hereunder and
(iii) the amount of any sum received by such Disbursement Agent
hereunder from any Borrower, whether such sum constitutes principal
amount or interest (and the type of Loan to which it applies), fees,
expenses or other amounts due under the Loan Documents and each
Lender's share thereof, if applicable.
(c) The entries made in the accounts maintained pursuant to
clauses (a) and (b) above shall, to the extent permitted by applicable
law, be prima facie evidence of the existence and amounts of the
obligations recorded therein; provided, however, that the failure of
any Lender or Disbursement Agent to maintain such accounts or any error
therein shall not in any manner affect the obligations of any Borrower
to repay the Loans in accordance with their terms.
(d) Notwithstanding any other provision of the Agreement, in
the event that any Lender requests that any Borrower execute and
deliver a promissory note or notes payable to such Lender in order to
evidence the Indebtedness owing to such Lender by such Borrower
hereunder, such Borrower shall promptly execute, deliver a Note or
Notes to such Lender evidencing any Term Loans, Revolving Dollar Loans
and Australian Dollar Loans, as the case may be, owing by such Borrower
to such Lender, substantially in the forms of Exhibit B-1 (Form of Term
Loan Note), Exhibit B-2 (Form of Dollar Revolving Credit Note) or
Exhibit B-3 (Form of Australian Dollar Revolving Credit Note)
respectively.
(e) Each Borrowing or borrowing of a Swing Loan made by any
Australian Borrower hereunder shall constitute a subscription by each
Lender in the applicable Facility of a number of Australian Debentures
equal to the principal amount of such Swing Loans or Loans comprising
such Borrowing by such Australian Borrower (so that such Australian
Debentures shall be issued with no original issue discount), and with
the same interest rate, repayment and other terms as those applicable
herein to such Swing Loans or other Loans. Each such Australian
Debenture shall be issued by such Australian Borrower hereunder on the
date the corresponding Revolving Loan or Swing Loan shall be made to
such Australian Borrower hereunder by issue of a Note (if requested,
and as otherwise provided for herein) and by entry in the Register, and
no certificate (other than the Notes, if any) will be issued in respect
of such Australian Debentures, except as may otherwise be required by
any Requirement of Law. If any Australian Debenture shall be issued
with respect to any Loan, such Loan and
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CREDIT AGREEMENT
SWIFT & COMPANY
Indebtedness owing pursuant to such Australian Debenture shall be one
and the same Indebtedness of the Borrowers hereunder and shall not
constitute separate obligations thereof.
SECTION 2.8 OPTIONAL PREPAYMENTS
(a) Revolving Loans. Any Borrower may, upon at least three
Business Days' prior notice to the applicable Disbursement Agent,
stating the proposed date and aggregate principal amount of the
prepayment, prepay the outstanding principal amount of the Revolving
Loans and Swing Loans in whole or in part; provided, however, that if
any prepayment of any Fixed Rate Loan is made by such Borrower other
than on the last day of an Interest Period for such Loan, such Borrower
shall also pay any amount owing pursuant to Section 2.14(e) (Breakage
Costs); and, provided, further, that each partial prepayment shall be
in an aggregate principal amount equal to one of the Currency
Thresholds for the currency in which the amounts prepaid are
denominated. Upon the giving of such notice of prepayment, the
principal amount of Revolving Loans specified to be prepaid shall
become due and payable on the date specified for such prepayment. Such
prepayments need not be ratable between the Dollar Revolving Credit
Facility and the Australian Dollar Subfacility.
(b) Term Loans. The Company may, upon at least three Business
Days' prior notice to the Administrative Agent stating the proposed
date and aggregate principal amount of the prepayment, prepay the
outstanding principal amount of the Term Loans, in whole or in part,
together with accrued and unpaid interest to the date of such
prepayment on the principal amount prepaid; provided, however, that if
any prepayment of any Eurodollar Rate Loan is made other than on the
last day of an Interest Period for such Loan, the Company shall also
pay any amounts owing pursuant to Section 2.14(e) (Breakage Costs);
and, provided, further, that each partial prepayment shall be in an
aggregate amount equal to one of the Currency Thresholds for Dollar
amounts and that any such partial prepayment shall be applied to each
such Term Loan (i) first, pro rata to the last four (or, if less, all
remaining) installments of such Term Loan and (ii) after such
installments shall have been paid in full, to the remaining
installments of such Term Loans in the inverse order of their maturity.
Upon the giving of such notice of prepayment, the principal amount of
the Term Loans specified to be prepaid shall become due and payable on
the date specified for such prepayment.
(c) No Borrower shall have the right to prepay the principal
amount of any Revolving Loan or any Term Loan other than as provided in
this Section 2.8 or in Section 2.9 (Mandatory Prepayments) below.
SECTION 2.9 MANDATORY PREPAYMENTS
(a) Net Cash Proceeds. Upon receipt by Holdings, the Company,
any Subsidiary of the Company or any Permitted Joint Venture of Net
Cash Proceeds arising from an Asset Sale, Property Loss Event, Debt
Issuance or Purchase Price Adjustment, the Borrowers shall prepay the
Loans (or provide cash collateral in respect of Letters of Credit) in
an amount equal to 100% of such Net Cash Proceeds; provided, however,
that no such prepayment shall be required from Net Cash Proceeds of a
Debt Issuance of Additional Unsecured Indebtedness permitted pursuant
to Section 8.1(n)(i) (Indebtedness) to the extent such Net Cash
Proceeds are used, substantially
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CREDIT AGREEMENT
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contemporaneously with such Debt Issuance, to finance a Permitted
Acquisition permitted hereunder as long as, on each of the date for the
funding of such Debt Issuance and the closing of such Permitted
Acquisition, (x) the Leverage Ratio of the Company for the most recent
four Fiscal Quarter period for which Financial Statements have been
delivered pursuant to Section 6.1 (Financial Statements), calculated on
a Pro Forma Basis after giving effect to such Debt Issuance and such
Permitted Acquisition, is less than or equal to 3.25 to 1 and (y) after
giving effect to such Debt Issuance and Permitted Acquisition, the
Company shall be in compliance with Article V (Financial Covenants) for
the most recent four Fiscal Quarter period for which Financial
Statements have been delivered pursuant to Section 6.1 (Financial
Statements), calculated on a Pro Forma Basis. Any mandatory prepayment
required to be made pursuant to this clause (a) shall be applied in
accordance with clause (d) below. Notwithstanding anything herein to
the contrary, (i) in the case of any Net Cash Proceeds arising from a
Reinvestment Event, the Borrowers shall prepay the Loans (or provide
cash collateral in respect of Letters of Credit, in an amount equal to
102% of the Letter of Credit Obligations) as provided in clauses (d)(i)
through (v) below in an amount equal to the Reinvestment Prepayment
Amount applicable to such Net Cash Proceeds, if any, on the
Reinvestment Prepayment Date for such Net Cash Proceeds (or upon the
earlier occurrence of any Default or Event of Default) and, pending
application of such proceeds as specified in the Reinvestment Notice
for such Net Cash Proceeds, other Net Cash Proceeds arising from such
Reinvestment Event may be applied, at the option of the Borrowers, as
provided in clauses (d)(ii) through (v) below or as a deposit to a Cash
Collateral Account and (ii) any Net Cash Proceeds arising from Asset
Sales (other than Asset Sales yielding, individually or in the
aggregate in any Fiscal Year, gross proceeds not greater than
$3,000,000, provided, however, that Net Cash Proceeds of Asset Sales in
connection with any sale and leaseback shall 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.
(b) Excess Cash Flow. The Company agrees that it shall prepay
the Loans within 90 days after the last day of each Cash Flow Period,
in an amount equal to 50% of Excess Cash Flow for such Cash Flow
Period. Any such mandatory prepayment shall be applied in accordance
with clause (d) below.
(c) Excess Borrowings. If at any time, (i) the sum of the
Revolving Credit Outstandings at such time and the aggregate principal
amount of Term Loans outstanding at such time exceeds the Aggregate
Maximum Credit at such time, (ii) the Revolving Credit Outstandings of
any Borrower exceeds the Maximum Available Borrowing Base of such
Borrower at such time or (iii) the aggregate Australian Dollar
Outstandings at such time exceed the aggregate Australian Dollar
Sublimits at such time, then the Borrowers (or, in the case of clause
(ii) above, such Borrower and, in the case of clause (iii) above, the
Australian Borrowers) shall forthwith prepay first the Swing Loans,
then the Revolving Loans and then the Term Loans then outstanding (and,
in the case of clause (ii) above, owing by such Borrower and, in the
case of clause (iii) above, owing by the Australian Borrowers) in an
amount equal to such excess and in the currency such Loans were made.
If any such excess remains after such repayment, the Borrowers (or, in
the case of clause (ii) above, such Borrower and, in the case of clause
(iii) above, the Australian Borrowers) shall provide cash collateral
for the Letter of Credit Obligations of the Borrowers (or, in the case
of clause (ii) above, such Borrower
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CREDIT AGREEMENT
SWIFT & COMPANY
and, in the case of clause (iii) above, the Australian Borrowers) in
the manner set forth in Section 9.3 (Actions in Respect of Letters of
Credit) in an amount equal to 102% of such excess and, if any such
excess remains after providing such cash collateral, the Company and
Australian Holdings shall prepay the Term Loans owing by either of them
in the amount of such excess. All repayments of the Term Loans made
pursuant to this clause (c) shall be applied (x) first, pro rata to the
last four (or, if less, all remaining) installments of the Term Loans
and (y) after each such installment shall have been paid in full, to
the remaining installments of the Term Loans in the inverse order of
their maturity.
(d) Subject to the provisions of Section 2.13(g) (Payments and
Computations), any prepayments of the Borrowers required to be applied
in accordance with this clause (d) shall be applied as follows: (i)
first, (except where clause (a) above provides for the application of
payments as provided in clauses (ii) through (v) below) to repay the
outstanding principal balance of the Term Loans, until such Term Loans
shall have been prepaid in full, (ii) second, to repay the outstanding
principal balance of the Swing Loans owing by the Company (in the case
of any mandatory prepayment arising from Excess Cash Flow or Net Cash
Proceeds received by it or any of its Subsidiaries or Permitted Joint
Ventures other than Australia Holdings and its Subsidiaries and
Permitted Joint Ventures (each a "Company Mandatory Prepayment")) or by
the Australian Borrowers (in the case of any mandatory prepayment
arising from Net Cash Proceeds received by Australian Holdings or any
of its Subsidiaries or Permitted Joint Ventures (each an "Australian
Mandatory Prepayment")) until such Swing Loans shall have been repaid
in full, (iii) third, to repay the outstanding principal balance of the
Revolving Loans owing by the Company (in the case of any Company
Mandatory Prepayment) or by the Australian Borrowers (in the case of
any Australian Mandatory Prepayment) until such Revolving Loans shall
have been paid in full, (iv) fourth, to provide cash collateral for any
Letter of Credit Obligation of the Company (in the case of any Company
Mandatory Prepayment) or by the Australian Borrowers (in the case of
any Australian Mandatory Prepayment) in the manner set forth in Section
9.3 (Actions in Respect of Letters of Credit) until 102% of the Letter
of Credit Obligations of such Borrower have been fully cash
collateralized in the manner set forth therein and (v) then, as a
deposit to an Approved Deposit Account of the Company (in the case of
any Company Mandatory Prepayment) or an Approved Deposit Account of one
of the Australian Borrowers (in the case of any Australian Mandatory
Prepayment) or any other account that can be maintained pursuant to
Section 7.13 (Control Accounts; Approved Deposit Accounts) to the
extent permitted to be on deposit therein. All repayments of the Term
Loans made pursuant to this clause (d) shall be applied (x) first, pro
rata to the last four (or, if less, all remaining) installments of the
Term Loans and (y) after each such installment shall have been paid in
full, to the remaining installments of the Term Loans in the inverse
order of their maturity; provided, however, that the amount of any
Australian Mandatory Prepayment required to be applied pursuant to
clause (i) above shall, prior to any application set forth above in
clauses (ii) through (v), be applied by Australian Holdings to prepay
its obligations under the Australian Intercompany Credit Agreement and
the Company shall apply the proceeds received from such prepayment of
the obligations under the Australian Intercompany Credit Agreement to
the prepayment of its Term Loans as if such prepayment were a Company
Mandatory Prepayment; and provided, further, that if the Borrowers
would otherwise be required to make any additional prepayment of the
Term Loans pursuant to clause (i) above, such prepayment shall be
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CREDIT AGREEMENT
SWIFT & COMPANY
made by the Company. No repayment of any Revolving Loan required to be
made pursuant to this clause (d) shall result in a permanent reduction
of the Revolving Credit Commitments other than repayments from Net Cash
Proceeds of the Australian Asset Sale. All repayments of Revolving
Loans and Swing Loans required to be made pursuant to this clause (d)
from the Net Cash Proceeds of the Australian Asset Sale (or from the
mandatory prepayment of the obligations under the Australian
Intercompany Credit Agreement resulting from the receipt of such Net
Cash Proceeds) shall result in a permanent reduction of the Revolving
Credit Commitment, but only to the extent provided in Section 2.5(b)
(Reduction and Termination of the Revolving Credit Commitments). The
Administrative Agent and the Australian Agent agrees so to apply such
funds and each Borrower consents to such application.
(e) Each Borrower hereby irrevocably waives the right to
direct the application of all funds in the Cash Collateral Account of
such Borrower and agrees that the Administrative Agent and the
Australian Agent shall, except, as provided in Section 2.13(g)
(Payments and Computations) and clause (d) above, apply all payments in
respect of Secured Obligations and all available funds in such Cash
Collateral Account on a daily basis as follows: first, to repay the
outstanding principal amount of the Swing Loans (or, if such Borrower
is an Australian Borrower, the Swing Loans of either Australian
Borrower) until such Swing Loans have been repaid in full; second, to
repay the outstanding principal balance of the Revolving Loans (or, if
such Borrower is an Australian Borrower, the Revolving Loans of either
Australian Borrower) until such Revolving Loans shall have been repaid
in full; and third, to any other Secured Obligation (or, if such
Borrower is an Australian Borrower, any other Secured Obligations of
Australian Holdings or any of its Subsidiaries) then due and payable;
provided, however, that, the Administrative Agent may agree with each
Borrower on procedures (that may involve change in the allocation
above) solely for the purpose of allocating, as long as there shall be
no Default or Event of Default, payments in one currency to the
repayment of Obligations in such currency or in certain other
currencies. The Administrative Agent and the Australian Agent agrees so
to apply such funds and each Borrower consents to such application. To
the extent, following such application, there are no Revolving Loans
(or, if such Borrower is an Australian Borrower, no Revolving Loans of
either Australian Borrower) outstanding, no other Secured Obligation
(or, if such Borrower is an Australian Borrower, no other Secured
Obligation of Australian Holdings or any of its Subsidiaries) is then
due and payable and (if such Borrower is an Australian Borrower) there
are no obligations outstanding under the Australian Intercompany Credit
Agreement (and, during the continuance of an Event of Default, cash
collateral remains in the Cash Collateral Account in an amount equal to
the principal amount of the Term Loans and 102% of all outstanding
aggregate Letter of Credit Obligations (or, if such Borrower is an
Australian Borrower, the Revolving Loans of either Australian Borrower)
in the manner set forth in Section 9.3 (Actions in Respect of Letters
of Credit)), then the Administrative Agent and the Australian Agent
shall cause any remaining funds in such Borrower's Cash Collateral
Account to be paid at the written direction of such Borrower.
SECTION 2.10 INTEREST
(a) Rate of Interest. All Loans and the outstanding amount of
all other Obligations (other than pursuant to Hedging Contracts that
are Loan Documents, to the
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CREDIT AGREEMENT
SWIFT & COMPANY
extent such Hedging Contracts provide for the accrual of interest on
unpaid obligations) shall bear interest, in the case of such Loans
(including, without duplication, the Australian Debentures and the
Notes evidencing such Loans), on the unpaid principal amount thereof
from the date such Loans are made and, in the case of such other
Obligations, from the date such other Obligations are due and payable
until, in all cases, paid in full, except as otherwise provided in
clause (c) below, as follows:
(i) if a Variable Rate Loan or such other Obligation,
at a rate per annum equal to the sum of (A) the Variable Rate as in
effect from time to time and (B) the Applicable Margin in effect from
time to time during the period such Variable Rate Loan shall remain
outstanding; and
(ii) if a Fixed Rate Loan, at a rate per annum equal
to the sum of (A) the Fixed Rate determined for the applicable Interest
Period and (B) the Applicable Margin in effect from time to time during
such Interest Period.
(b) Interest Payments
(i) interest accrued on each Variable Rate Loan
(other than Swing Loans) shall be payable in arrears (A) in the case of
Base Rate Loans only, on the first Business Day of each calendar month,
commencing on the first such day following the making of such Base Rate
Loan, (B) in the case of Australian Short-Term Loans and Base Rate
Loans that are Term Loans only, upon the payment or prepayment thereof
in full or in part and (C) in any case, if not previously paid in full,
at maturity (whether by acceleration or otherwise) of such Variable
Rate Loan;
(ii) interest accrued on Swing Loans shall be payable
in arrears on the first Business Day of the immediately succeeding
calendar month;
(iii) interest accrued on each Fixed Rate Loan shall
be payable in arrears (A) on the last day of each Interest Period
applicable to such Loan and, if such Interest Period has a duration of
more than three months, on each day during such Interest Period
occurring every three months from the first day of such Interest
Period, (B) upon the payment or prepayment thereof in full or in part
and (C) if not previously paid in full, at maturity (whether by
acceleration or otherwise) of such Fixed Rate Loan; and
(iv) interest accrued on the amount of all other
Obligations shall be payable on demand from and after the time such
Obligation becomes due and payable (whether by acceleration or
otherwise).
(c) Default Interest. Notwithstanding the rates of interest
specified in clause (a) above or elsewhere herein, effective
immediately upon the occurrence of an Event of Default and for as long
thereafter as such Event of Default shall be continuing, the principal
balance of all Loans and the amount of all other Obligations then due
and payable shall bear interest at a rate that is two percent per annum
in excess of the rate of interest applicable to such Loans or other
Obligations from time to time and that is payable on the dates set
forth above for the payment of interest and applicable to such
Obligation.
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CREDIT AGREEMENT
SWIFT & COMPANY
SECTION 2.11 CONVERSION AND CONTINUATION
(a) Any Borrower may elect (i) at any time on any Business
Day, to convert Variable Rate Loans (other than Swing Loans) owing by
it or any portion thereof to Fixed Rate Loans in the same currency and
(ii) at the end of any applicable Interest Period, to convert
Eurodollar Rate Loans owing by it or any portion thereof into Base Rate
Loans or to continue any Fixed Rate Loans in any currency or any
portion thereof as Fixed Rate Loans of the same currency for an
additional Interest Period; provided, however, that the aggregate
amount of each Fixed Rate Loan for any Interest Period in any currency
must be in the amount equal to one of the Currency Thresholds for such
currency. Each conversion or continuation of (x) Revolving Dollar Loans
shall be allocated among the Revolving Dollar Loans of each Revolving
Credit Lender in accordance with such Revolving Credit Lenders' Ratable
Portions of such Revolving Dollar Loans, (y) Australian Dollar Loans
shall be allocated among the Australian Dollar Lenders in accordance
with such Australian Dollar Lenders' Australian Dollar Ratable Portions
of such Australian Dollar Loans and (z) Term Loans shall be allocated
among the Term Loan Lenders in accordance with such Term Loan Lender's
Ratable Portion of the Term Loan Facility. Each such election shall be
in substantially the form of Exhibit F (Form of Notice of Conversion or
Continuation) (a "Notice of Conversion or Continuation") and shall be
made by giving the applicable Disbursement Agent at least three
Business Days' prior written notice specifying (A) the amount and type
of Loan being converted or continued, (B) in the case of a conversion
to or a continuation of, Fixed Rate Loans, the applicable Interest
Period and (C) in the case of a conversion, the date of such
conversion. Each Notice of Conversion or Continuation shall be
irrevocable.
(b) The applicable Disbursement Agent shall promptly notify
each Lender in the applicable Facility of its receipt of a Notice of
Conversion or Continuation and of the options selected therein.
Notwithstanding the foregoing, no conversion in whole or in part of
Variable Rate Loans to Fixed Rate Loans and no continuation in whole or
in part of Fixed Rate Loans upon the expiration of any applicable
Interest Period shall be permitted at any time at which (A) a Default
or an Event of Default shall have occurred and be continuing or (B) the
continuation of, or conversion into, a Fixed Rate Loan would violate
any provision of Section 2.14 (Special Provisions Governing External
Rate Loans).
(c) If, within the time period required under the terms of
this Section 2.11, the applicable Disbursement Agent does not receive a
Notice of Conversion or Continuation from any Borrower containing a
permitted election to continue any Fixed Rate Loan owing by it for an
additional Interest Period or, to the extent permitted herein, to
convert any such Fixed Rate Loans or if such notice cannot be delivered
in compliance with clause (b) above, then, upon the expiration of the
applicable Interest Period, (i) in the case of Eurodollar Rate Loans,
such Eurodollar Rate Loans shall be automatically converted to Base
Rate Loans with an aggregate principal amount equal to the aggregate
principal amount of such Eurodollar Rate Loan on the date of such
conversion and (ii) in the case of Australian ▇▇▇▇ Rate Loans, such
Australian ▇▇▇▇ Rate Loans shall be automatically continued as an
Australian ▇▇▇▇ Rate Loan with (A) if such notice cannot be delivered
in compliance with clause (b) above, an Interest Period of one month
and (B) otherwise, the same Interest Period.
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CREDIT AGREEMENT
SWIFT & COMPANY
(d) At any time (i) after the occurrence and during the
continuance of any Event of Default, the Administrative Agent may (and,
upon the request of the Requisite Australian Dollar Lenders or upon the
acceleration of the Australian Dollar Loans pursuant to Section 9.2
(Remedies), shall) and (ii) upon the replacement of any Australian
Dollar Loan by a Base Rate Loan or a Loan made in Dollars pursuant to
this Agreement the Administrative Agent shall demand that each
Revolving Credit Lender pay to the Administrative Agent, for the
account of the Australian Dollar Lenders, in the manner provided in
clause (e) below, such Revolving Credit Lender's Ratable Portion of the
Australian Dollar Outstandings at such time (or, in the case of a
replacement of only some of the Australian Dollar Loans, the Australian
Dollar Outstandings at such time relating to such Australian Dollar
Loans), which demand shall be made through the Administrative Agent,
shall be in writing and shall specify the outstanding principal amount
and interest of Australian Dollar Loans demanded to be paid.
(e) Each demand referred to in clause (d) above shall be
delivered to each Revolving Credit Lender (or, in cases where clause
(d) above does not require a demand from the Borrower, a similar notice
prepared by the Administrative Agent), together with a statement
prepared by the Administrative Agent setting forth in reasonable detail
the Australian Dollar Outstandings subject to such demand, and, whether
or not the conditions set forth in Sections 3.2 (Conditions Precedent
to Each Loan and Letter of Credit) and 2.1(a) (The Commitments) shall
be satisfied (which conditions the Revolving Credit Lenders hereby
irrevocably waive), each Revolving Credit Lender shall, before 11:00
a.m. (New York time) on the Business Day next succeeding the date of
such Revolving Credit Lender's receipt of such demand, make available
to the Administrative Agent, in immediately available Dollars for the
account of the Australian Dollar Lenders, its Ratable Portion of the
Australian Dollar Outstandings subject to such demand. Upon such
payment by a Revolving Credit Lender, such Revolving Credit Lender
shall, except as provided in clause (f) below, be deemed to have made a
Revolving Dollar Loan to the Borrower owing such Australian Dollar
Loans in the principal amount of such payment. The Administrative Agent
shall forward such payments by the Revolving Credit Lenders (or cause
such payments to be forwarded) to the Australian Dollar Lenders to
repay the Australian Dollar Loans subject to such demand. To the extent
that any Revolving Credit Lender fails to make such Ratable Portion
available to the Administrative Agent for the account of the Australian
Dollar Lender, the Borrower agrees to pay such Ratable Portion on
demand in immediately available Dollars for the benefit of the
Australian Dollar Lenders (as payment for the Australian Dollar Loans
subject to such demand). As of the date of any such demand, the
Australian Dollar Loans (together with any interest then accrued
thereon) shall, immediately and without further action, become due and
payable and, to the extent not otherwise repaid hereunder, the
Borrowers agree, as a separate and independent obligation, to pay to
the Australian Agent, for the account of any Australian Dollar Lender
entitled thereto, any amounts to which any Australian Dollar Lender may
be entitled to pursuant to Section 2.14(e) (Breakage Costs) or Section
11.13 (Currency of Payment) and which shall not otherwise have been
repaid by the Revolving Credit Lenders pursuant to this Section 2.11
(Conversion and Continuation).
(f) Upon the occurrence of an Event of Default under Section
9.1(f) (Events of Default), the Australian Dollar Outstandings shall
(other than for purpose of Section 2.14(e) (Breakage Costs) and Section
11.13 (Currency of Payment)) automatically, immediately, and without
notice of any kind, convert to Loans and other
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CREDIT AGREEMENT
SWIFT & COMPANY
obligations made in Dollars and bearing interest at the rate applicable
to Revolving Loans bearing interest based on the Base Rate, whereupon
each Revolving Credit Lender shall acquire, without recourse or
warranty, an undivided participation in each Australian Dollar Loan
otherwise required to be repaid by such Revolving Credit Lender
pursuant to clause (e) above, which participation shall be in a
principal amount equal to such Revolving Credit Lender's Ratable
Portion of the Australian Dollar Outstandings corresponding to such
Australian Dollar Loan, by paying to the Administrative Agent for the
benefit of the Australian Dollar Lenders on the date on which such
Revolving Credit Lender would otherwise have been required to make a
payment in respect of such Australian Dollar Loan pursuant to clause
(e) above, in immediately available funds, an amount equal to such
Revolving Credit Lender's Ratable Portion of the Australian Dollar
Outstandings in respect of such Australian Dollar Loan. If all or part
of such amount is not in fact made available by such Revolving Credit
Lender to the Administrative Agent on such date, each Australian Dollar
Revolving Lender shall be entitled to recover any such unpaid amount on
demand from such Revolving Credit Lender together with interest accrued
from such date at the Australian Short-Term Rate. As of the date of any
such Event of Default under Section 9.1(f) (Events of Default), all
Australian Dollar Loans and other Australian Dollar Outstandings shall,
immediately and without further action, become due and payable and, to
the extent not otherwise repaid hereunder, the Borrowers agree, as a
separate and independent obligation, to pay to the Australian Agent,
for the account of any Australian Dollar Lender entitled thereto, any
amounts to which any Australian Dollar Lender may be entitled to
pursuant to Section 2.14(e) (Breakage Costs) or Section 11.13 (Currency
of Payment) and which shall not have otherwise been paid by the
Revolving Credit Lenders pursuant to this Section 2.11 (Conversion and
Continuation).
(g) From and after the date on which any Revolving Credit
Lender (i) is deemed to have made a Revolving Loan pursuant to clause
(e) above with respect to any Australian Dollar Loan or (ii) purchases
an undivided participation interest in an Australian Dollar Loan
pursuant to clause (f) above, the Administrative Agent, the Australian
Agent and each Australian Dollar Lender shall promptly distribute to
such Revolving Credit Lender such Revolving Credit Lender's Ratable
Portion of all payments of principal amount and interest received by
the Administrative Agent, the Australian Agent or such Australian
Dollar Lender on account of such Australian Dollar Loan in excess of
those received pursuant to clause (e) or (f) above.
SECTION 2.12 FEES
(a) Unused Commitment Fees. The Borrowers, jointly and
severally, agree to pay in Dollars in immediately available funds to
each Revolving Credit Lender a commitment fee on the actual daily
amount, if any, by which the Revolving Credit Commitment of such
Revolving Credit Lender exceeds its Ratable Portion of the sum of (i)
the aggregate outstanding principal amount of the Revolving Dollar
Loans and (ii) the outstanding amount of the aggregate Letter of Credit
Obligations of the Borrowers (the "Unused Commitment Fee") from the
date hereof through the Revolving Credit Termination Date at the
Applicable Unused Commitment Fee Rate, payable in arrears (x) on the
first Business Day of each calendar quarter, commencing on the first
such Business Day following the Closing Date and (y) on the Revolving
Credit Termination Date.
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CREDIT AGREEMENT
SWIFT & COMPANY
(b) Letter of Credit Fees. Each Borrower agrees to pay the
following amounts with respect to Letters of Credit issued by any
Issuer for the account of such Borrower:
(i) to the Administrative Agent for the account of
each Issuer of any Letter of Credit, with respect to each such Letter
of Credit issued by such Issuer, an issuance fee (A) with respect to
Letters of Credit denominated in Australian Dollars, equal to 1/4 of 1%
per annum of the daily maximum undrawn face amount of such Letter of
Credit and payable in Australian Dollars in arrears and (B) otherwise,
equal to 1/4 of 1% per annum of the Dollar Equivalent of the daily
maximum undrawn face amount of such Letter of Credit and payable in
Dollars in arrears, in each case (A) on the first Business Day of each
calendar quarter, commencing on the first such Business Day following
the issuance of such Letter of Credit and (B) on the Revolving Credit
Termination Date;
(ii) to the Administrative Agent for the benefit of
the Revolving Credit Lenders in accordance with their Ratable Portions
thereof, with respect to each Letter of Credit, a fee accruing in
Dollars at a rate per annum equal to the Applicable Margin for
Revolving Loans that are Eurodollar Rate Loans on the Dollar Equivalent
of the daily maximum undrawn face amount of such Letter of Credit,
payable in arrears (A) on the first Business Day of each calendar
quarter, commencing on the first such Business Day following the
issuance of such Letter of Credit and (B) on the Revolving Credit
Termination Date; provided, however, that during the continuance of an
Event of Default, such fee shall be increased by two percent per annum
(instead of, and not in addition to, any increase that could have
occurred pursuant to Section 2.10(c) (Interest)) and shall be payable
on demand; and
(iii) to the Issuer of any Letter of Credit, with
respect to the issuance, amendment or transfer of each Letter of Credit
and each drawing made thereunder, documentary and processing charges in
accordance with such Issuer's standard schedule for such charges in
effect at the time of issuance, amendment, transfer or drawing, as the
case may be.
(c) Additional Fees. The Company has agreed to pay to the
Administrative Agent, the Syndication Agent and the Arrangers
additional fees, the amount and dates of payment of which are embodied
in the Fee Letter.
SECTION 2.13 PAYMENTS AND COMPUTATIONS
(a) Each Borrower shall make each payment hereunder (including
fees and expenses) not later than 11:00 a.m. (Local Time) on the day
when due, in the currency specified herein or, if no such currency is
specified, in Dollars, to the applicable Disbursement Agent at its
address referred to in Section 11.8 (Notices, Etc.) in immediately
available funds without set-off or counterclaim. Such Disbursement
Agent shall promptly thereafter cause to be distributed immediately
available funds relating to the payment of principal, interest or fees
to the Lenders entitled thereto, in accordance with the application of
payments set forth in clause (f) or (g) below, as applicable, for the
account of their respective Applicable Lending Offices; provided,
however, that amounts payable pursuant to Section 2.15 (Capital
Adequacy), Section 2.16 (Taxes) or Section 2.14(c) or (d) (Special
Provisions Governing External Rate Loans) shall be paid only to the
affected Lender or Lenders and amounts payable with respect to Swing
Loans
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CREDIT AGREEMENT
SWIFT & COMPANY
shall be paid only to the Swing Loan Lender. Payments received by the
Disbursement Agent after 11:00 a.m. (Local Time) shall be deemed to be
received on the next Business Day.
(b) All computations of interest and fees shall be made by the
applicable Disbursement Agent on the basis of a year of 360 days (or,
in the case of Base Rate Loans and Australian Dollar Loans, 365/6
days), in each case for the actual number of days (including the first
day but excluding the last day) occurring in the period for which such
interest and fees are payable. Each determination by the applicable
Disbursement Agent of a rate of interest hereunder shall be conclusive
and binding for all purposes, absent manifest error.
(c) Each payment by a Borrower in respect of any Loan,
Reimbursement Obligation (including interest or fees in respect
thereof) or reimbursement of various costs and expenses shall be made
in the currency in which such Loan was made, such Letter of Credit
issued or such cost or expense was incurred.
(d) Whenever any payment hereunder shall be stated to be due
on a day other than a Business Day, the due date for such payment shall
be extended to the next succeeding Business Day, and such extension of
time shall in such case be included in the computation of payment of
interest or fees, as the case may be; provided, however, that if such
extension would cause payment of interest on or principal of any Fixed
Rate Loan to be made in the next calendar month, such payment shall be
made on the immediately preceding Business Day. All repayments of any
Revolving Loans or Term Loans shall be applied as follows: first, to
repay such Loans outstanding as Variable Rate Loans and then, to repay
such Loans outstanding as Fixed Rate Loans, with those Fixed Rate Loans
having earlier expiring Interest Periods being repaid prior to those
having later expiring Interest Periods.
(e) Unless the applicable Disbursement Agent shall have
received notice from the Company to the applicable Lenders prior to the
date on which any payment is due by any Borrower hereunder that such
Borrower will not make such payment in full, such Disbursement Agent
may assume that such Borrower has made such payment in full to such
Disbursement Agent on such date and such Disbursement Agent may, in
reliance upon such assumption, cause to be distributed to each Lender
on such due date an amount equal to the amount then due such Lender. If
and to the extent that such Borrower shall not have made such payment
in full to such Disbursement Agent, each Lender in the applicable
Facility shall repay to the Disbursement Agent forthwith on demand such
amount distributed to such Lender together with interest thereon (at
the Interbank Rate for the first Business Day and thereafter, in
respect of the Australian Dollar Loans, on each day at the maximum rate
that could be applicable hereunder to Australian Dollar Loans on such
day and, in respect of all other amounts, at the rate applicable to
Base Rate Loans) for each day from the date such amount is distributed
to such Lender until the date such Lender repays such amount to the
applicable Disbursement Agent.
(f) Except for payments and other amounts received by the
applicable Disbursement Agent and applied in accordance with the
provisions of clause (g) below (or required to be applied in accordance
with Section 2.9(d) or (e) (Mandatory Prepayments)), all payments and
any other amounts received by the Disbursement Agents from or for the
benefit of any Borrower shall be applied as follows: first, to pay
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principal of, and interest on, any portion of the Loans any
Disbursement Agent may have advanced to such Borrower (or, if such
Borrower is an Australian Borrower, to any Australian Borrower)
pursuant to the express provisions of this Agreement on behalf of any
Lender, for which such Disbursement Agent has not then been reimbursed
by such Lender or any Borrower, second, to pay all other Obligations
then due and payable by such Borrower (or, if such Borrower is an
Australian Borrower, by any Australian Borrower) and third, as such
Borrower so designates. Payments in respect of Swing Loans received by
the Administrative Agent shall be distributed to the Swing Loan Lender,
payments in respect of Australian Dollar Loans received by the
Australian Agent shall be distributed to each Australian Dollar Lender
in accordance with such Australian Dollar Lender's Australian Dollar
Ratable Portion, payments in respect of Revolving Dollar Loans received
by the Administrative Agent shall be distributed to each Revolving
Credit Lender in accordance with such Revolving Credit Lender's Ratable
Portion of the Revolving Dollar Loans, payments in respect of the Term
Loans received by the Administrative Agent shall be distributed to each
Term Loan Lender in accordance with such Lender's Ratable Portion of
the Term Loans and all payments of fees and all other payments in
respect of any other Obligation shall be allocated among such of the
Lenders and Issuers as are entitled thereto and, subject to clause (h)
below for such payments allocated to the Lenders in any or all of the
Facilities, in proportion to their respective applicable Ratable
Portions in such Facilities or, as the case may be, in proportion to
their respective applicable Australian Dollar Ratable Portions.
(g) Each Borrower hereby irrevocably waives the right to
direct the application of any and all payments in respect of the
Secured Obligations and any proceeds of Collateral after the occurrence
and during the continuance of an Event of Default and agrees that,
notwithstanding the provisions of Section 2.9(d) (Mandatory
Prepayments) and clause (f) above, each Disbursement Agent and the
Australian Collateral Trustee may, and, upon either (A) the written
direction of the Requisite Lenders or (B) the acceleration of the
Obligations pursuant to Section 9.2 (Remedies), shall, apply all
payments in respect of any Secured Obligation and all funds on deposit
in any Cash Collateral Account and all other proceeds of Collateral of
such Borrower in the following order:
First, to pay Secured Obligations in respect of any
expense reimbursements or indemnities and Cash Management Obligations
then due by such Borrower (or, if such Borrower is an Australian
Borrower, by any Australian Borrower) to any Disbursement Agent or the
Australian Collateral Trustee;
Second, to pay Secured Obligations in respect of any
expense reimbursements or indemnities and Cash Management Obligations
then due by such Borrower (or, if such Borrower is an Australian
Borrower, by any Australian Borrower) to the Lenders and the Issuers;
Third, to pay Secured Obligations in respect of any
fees then due by such Borrower (or, if such Borrower is an Australian
Borrower, by any Australian Borrower) to any Disbursement Agent, the
Australian Collateral Trustee the Lenders and the Issuers;
Fourth, to pay interest then due and payable in
respect of the Loans owing by such Borrower (or, if such Borrower is an
Australian Borrower, by any
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Australian Borrower) and in respect of Reimbursement Obligations of
such Borrower (or, if such Borrower is an Australian Borrower, of any
Australian Borrower);
Fifth, to pay or prepay principal amounts on the
Loans owing by such Borrower (or, if such Borrower is an Australian
Borrower, by any Australian Borrower) and Reimbursement Obligations of
such Borrower (or, if such Borrower is an Australian Borrower, of any
Australian Borrower) and to provide cash collateral for Letter of
Credit Undrawn Amounts of such Borrower (or, if such Borrower is an
Australian Borrower, of any Australian Borrower) in the manner
described in Section 9.3 (Actions in Respect of Letters of Credit),
ratably to the aggregate principal amount of such Loans, Reimbursement
Obligations and Letter of Credit Undrawn Amounts, and Secured
Obligations owing by such Borrower (or, if such Borrower is an
Australian Borrower, by any Australian Borrower) with respect to
Hedging Contracts; and
Sixth, to the ratable payment of all other Secured
Obligations owing by such Borrower (or, if such Borrower is an
Australian Borrower, by any Australian Borrower);
provided, however, that if sufficient funds are not available to fund
all payments to be made in respect of any Secured Obligation described
in any of clauses first, second, third, fourth, fifth and sixth above,
the available funds being applied with respect to any such Secured
Obligation (unless otherwise specified in such clause) shall be
allocated to the payment of such Secured Obligations pro rata, based on
the proportion of the Administrative Agent's, the Australian Agent's,
the Australian Collateral Trustee's and each Lender's, Issuer's or
other Secured Party's interest in the aggregate outstanding Secured
Obligations described in such clauses; provided, however, that payments
that would otherwise be allocated to the Revolving Credit Lenders shall
be allocated first to pay Protective Advances and Swing Loans pro rata
and then to Revolving Loans outstanding. The order of priority set
forth in the last proviso of the preceding sentence may at any time and
from time to time be changed by the agreement of the Requisite
Revolving Credit Lenders, the Swing Loan Lender and the Administrative
Agent, without necessity of notice or consent or approval by any
Borrower, any other Secured Party or Person. The order of priority set
forth in clauses first, second, third, fourth, fifth and sixth above
may at any time and from time to time be changed by the agreement of
the Requisite Term Loan Lenders and Requisite Revolving Credit Lenders
without necessity of notice to or consent of or approval by any
Borrower, any Secured Party that is not a Lender or Issuer or by any
other Person that is not a Lender or Issuer. The order of priority set
forth in clauses first, second and third above may be changed only with
the prior written consent of the Administrative Agent, the Australian
Collateral Trustee and the Australian Agent in addition to that of the
Requisite Term Loan Lenders and Requisite Revolving Credit Lenders.
(h) The Administrative Agent reserves the right to apply
against the repayment of any Obligations under the Revolving Credit
Facility owing in any currency, any repayment and other amounts that
may be applied in accordance with other provisions of this Agreement to
repay such Obligations, regardless of the currency in which such
repayments and amounts were received or are held.
(i) At the option of the Administrative Agent, principal on
the Swing Loans owing by any Borrower, Reimbursement Obligations of any
Borrower, interest, fees,
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SWIFT & COMPANY
expenses and other sums due and payable in respect of the Loans of any
Borrower and Protective Advances allocated to any Borrower may be paid
from the proceeds of Swing Loans or Revolving Loans made to such
Borrower. Each Borrower hereby authorizes the Swing Loan Lender to make
such Swing Loans pursuant to Section 2.3(a) (Swing Loans) and the
Revolving Credit Lenders to make such Revolving Loans pursuant to
Section 2.2(a) (Borrowing Procedures) in the amounts of any and all
principal payable by such Borrower with respect to the Swing Loans,
Reimbursement Obligations, interest, fees, expenses and other sums
payable by such Borrower in respect of the Loans and Protective
Advances allocated to such Borrower, and further authorizes the
Administrative Agent to prepare and give to the Revolving Credit
Lenders Swing Loan Requests and Notices of Borrowing with respect to
such Swing Loans and Revolving Loans and to distribute the proceeds of
such Swing Loans and Revolving Loans to pay such amounts. Each Borrower
agrees that all such Swing Loans and Revolving Loans so made shall be
deemed to have been requested by it (irrespective of the satisfaction
of the conditions set forth in Section 3.2 (Conditions Precedent to
Each Loan and Letter of Credit), which conditions the Lenders
irrevocably waive) and directs that all proceeds thereof shall be used
to pay such amounts.
SECTION 2.14 SPECIAL PROVISIONS GOVERNING EXTERNAL RATE LOANS
(a) Determination of External Rate
Each External Rate for each applicable period of determination
shall be determined by the applicable Disbursement Agent pursuant to the
procedures set forth in the definition of "Eurodollar Rate", "Australian ▇▇▇▇
Rate" and "Australian Short-Term Rate", as the case may be, and the definition
of "Reference Screen". The Disbursement Agent shall notify the Company of such
determination, and such Disbursement Agent's determination shall be presumed to
be correct absent manifest error and shall be binding on each Borrower.
(b) External Rate Unascertainable, Inadequate or Unfair
In the event that (i) the applicable Disbursement Agent
determines that adequate and fair means do not exist for ascertaining the
applicable interest rates by reference to which the External Rate then being
determined is to be fixed or (ii) the Requisite Lenders or Requisite Australian
Dollar Lenders, as the case may be, notify the Disbursement Agent for the
applicable Facility that the External Rate for any applicable determination
period in such Facility will not adequately reflect the cost to the Lenders in
such Facility of making or maintaining such Loans in the applicable currency for
such Interest Period or Borrowing, such Disbursement Agent shall forthwith so
notify the Company and such Lenders, whereupon each such External Rate Loan
shall automatically, on the date of such determination (or, in the case of a
Fixed Rate Loan, on the last day of the current Interest Period therefor)
convert into (or, in the case of an Australian Dollar Loan, be replaced by, in
accordance with Section 2.11(d) (Conversion and Continuation)) a Base Rate Loan
denominated in Dollars with an aggregate principal amount equal to the aggregate
principal amount of such Loan and the obligations of such Lenders to make such
External Rate Loans or, if applicable, to convert the applicable Variable Rate
Loans into such External Rate Loans shall be suspended until such Disbursement
Agent shall notify the Company that the Requisite Lenders have determined that
the circumstances causing such suspension no longer exist.
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CREDIT AGREEMENT
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(c) Increased Costs
If at any time any Lender determines that the introduction of,
or any change in or in the interpretation of, any law, treaty or governmental
rule, regulation or order (other than any change by way of imposition or
increase of reserve requirements included in determining an External Rate) or
the compliance by such Lender with any guideline, request or directive from any
central bank or other Governmental Authority (whether or not having the force of
law) (each a "Change of Law"), shall have the effect of increasing the cost to
such Lender of agreeing to make or making, funding or maintaining any External
Rate Loan to any Borrower, then such Borrower shall from time to time upon
demand by such Lender (with a copy of such demand to the applicable Disbursement
Agent), pay to such Disbursement Agent for the account of such Lender additional
amounts sufficient to compensate such Lender for such increased cost. A
certificate as to the amount of such increased cost, submitted to such Borrower
and the applicable Disbursement Agent by such Lender and showing in reasonable
detail the calculation thereof, shall be conclusive and binding for all
purposes, absent manifest error; provided, however, that (i) notwithstanding the
foregoing, no Borrower shall be required to compensate any Lender or Issuer for
any increased cost incurred more than 180 days prior to the delivery of such
certificate (such period to be extended in the case of increased costs caused by
a Change of Law with retroactive effect to include the period of retroactive
effect of such Change of Law) and (ii) failure or delay on the part of any
Lender or Issuer to deliver such certificate shall not constitute a waiver of
such Lender or Issuer's right to demand compensation pursuant to this clause
(c).
(d) Illegality
Notwithstanding any other provision of this Agreement, if any
Lender determines that the introduction of, or any change in or in the
interpretation of, any law, treaty or governmental rule, regulation or order
after the date of this Agreement shall make it unlawful, or any central bank or
other Governmental Authority shall assert that it is unlawful, for any Lender or
its Applicable Lending Office to make External Rate Loans in any currency or to
continue to fund or maintain External Rate Loans in any currency to any
Borrower, then, on notice thereof and demand therefor by such Lender to such
Borrower through the applicable Disbursement Agent, (i) the obligation of such
Lender to make or, if applicable, to continue such External Rate Loans in such
currency to such Borrower and, if applicable, to convert Variable Rate Loans of
such Borrower into such External Rate Loans in such currency shall be suspended,
and each such Lender shall make a Base Rate Loan in Dollars as part of any
requested Borrowing of such External Rate Loans in such currency by such
Borrower and (ii) if such External Rate Loans in such currency are then
outstanding, such Borrower shall (A) in the case of Eurodollar Rate Loans,
immediately convert each such affected Eurodollar Rate Loan into a Base Rate
Loan in an aggregate principal amount equal to the aggregate principal amount of
such Eurodollar Rate Loan on the date of such conversion and (B) in the case of
an Australian Dollar Loan, immediately pay such Australian Dollar Loan, together
with interest accrued thereon. If, at any time after a Lender gives notice under
this Section 2.14(d) in respect of External Rate Loans in any currency, such
Lender determines that it may lawfully make to such Borrower such External Rate
Loans in such currency, such Lender shall promptly give notice of that
determination to such Borrower and the applicable Disbursement Agent, and such
Disbursement Agent shall promptly transmit the notice to each other Lender. Such
Borrower's right to request, and such Lender's obligation, if any, to make to
such Borrower such External Rate Loans in such currency shall thereupon be
restored.
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CREDIT AGREEMENT
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(e) Breakage Costs
In addition to all amounts required to be paid by the
Borrowers pursuant to Section 2.10 (Interest), each Borrower shall compensate
each Lender, upon demand, for all losses, expenses and liabilities (including
any loss or expense incurred by reason of the liquidation or reemployment of
deposits or other funds acquired by such Lender to fund or maintain such
Lender's Fixed Rate Loans to such Borrower (whether or not due to any variation
in the applicable Fixed Rate) but excluding any loss of the Applicable Margin on
the relevant Loans) that such Lender may sustain (i) if for any reason (other
than principally by reason of such Lender being a Non-Funding Lender) a proposed
Borrowing by such Borrower of, conversion into or continuation of, such Fixed
Rate Loans by such Borrower does not occur on a date specified therefor in a
Notice of Borrowing or a Notice of Conversion or Continuation given by such
Borrower or in a telephonic request by it for borrowing or conversion or
continuation or a successive Interest Period does not commence after notice
therefor is given pursuant to Section 2.11 (Conversion and Continuation), (ii)
if for any reason any Fixed Rate Loan of such Borrower is prepaid (including
mandatorily pursuant to Section 2.9 (Mandatory Prepayments)) on a date that is
not the last day of the applicable Interest Period, (iii) as a consequence of a
required conversion to, or replacement by, a Base Rate Loan in Dollars of a
Fixed Rate Loan of such Borrower as a result of any of the events indicated in
clause (d) above or (iv) as a consequence of any failure by such Borrower to
repay Fixed Rate Loans when required by the terms hereof. The Lender making
demand for such compensation shall deliver to such Borrower concurrently with
such demand a written certificate as to such losses, expenses and liabilities,
showing in reasonable details the calculation thereof, and this statement shall
be conclusive as to the amount of compensation due to such Lender, absent
manifest error.
SECTION 2.15 CAPITAL ADEQUACY
If at any time any Lender determines that (a) the adoption of,
or any change in or in the interpretation of, any law, treaty or governmental
rule, regulation or order after the date of this Agreement regarding capital
adequacy, (b) compliance with any such law, treaty, rule, regulation or order or
(c) compliance with any guideline or request or directive from any central bank
or other Governmental Authority (whether or not having the force of law) shall
have the effect of reducing the rate of return on such Lender's (or any
corporation controlling such Lender's) capital as a consequence of its
obligations hereunder or under or in respect of any Letter of Credit to a level
below that which such Lender or such corporation could have achieved but for
such adoption, change, compliance or interpretation, then, upon demand from time
to time by such Lender (with a copy of such demand to the applicable
Disbursement Agent), each Borrower agrees to pay to the applicable Disbursement
Agent for the account of such Lender additional amounts sufficient to compensate
such Lender for such reduction. A certificate as to such amounts submitted to
the Company and the Administrative Agent by such Lender shall be conclusive and
binding for all purposes absent manifest error.
SECTION 2.16 TAXES
(a) Any and all payments by any Loan Party under each Loan
Document shall be made free and clear of and without deduction for any
and all present or future taxes (including GST), levies, imposts,
deductions, charges or withholdings, and all liabilities with respect
thereto, excluding, in the case of each Lender, Issuer and each Agent,
(i) taxes measured by its net income, and franchise taxes imposed on
it, by (A) the jurisdiction (or any political subdivision thereof)
under the laws of which such Lender,
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CREDIT AGREEMENT
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Issuer or Disbursement Agent (as the case may be) is organized or (B)
Australia by virtue of its having a permanent establishment in
Australia to which income under this Agreement is attributable or by
virtue of its Applicable Lending Office being located in Australia,
(ii) any United States withholding taxes payable with respect to
payments under the Loan Documents under laws (including any statute,
treaty or regulation) in effect on the Closing Date (or, in the case of
an Eligible Assignee, the date of the Assignment and Acceptance) and
applicable to such Lender, Issuer or Disbursement Agent, as the case
may be, but not excluding any United States withholding taxes payable
as a result of any change in such laws occurring after the Closing Date
(or the date of such Assignment and Acceptance), (iii) taxes measured
by such Lender's, Issuer's or Agent's net income and franchise taxes
imposed on it as a result of a present or former connection between
such Lender, Issuer or Agent and the jurisdiction of the Governmental
Authority imposing such tax or any taxing authority thereof or therein
(all such non-excluded taxes, levies, imposts, deductions, charges,
withholdings and liabilities being hereinafter referred to as "Taxes").
If any Taxes shall be required by law to be deducted from or in respect
of any sum payable under any Loan Document to any Lender, Issuer or
Agent (w) the sum payable shall be increased as may be necessary so
that after making all required deductions (including deductions
applicable to additional sums payable under this Section 2.16) such
Lender, Issuer or Agent (as the case may be) receives an amount equal
to the sum it would have received had no such deductions been made,
provided, however, that no such increase shall be made pursuant to this
clause (w) to any sum payable to any Lender that (1) is an Associate of
any Australian Borrower to the extent the corresponding required
deduction is due to Australian Withholding Tax and occurs as a result
of such Lender being an Associate of any Australian Borrower or (2) has
failed to comply with the provisions of clause (f), (g) or (i) of this
Section 2.16 and such deduction would not have occurred but for such
failure to comply, (x) the relevant Loan Party shall make such
deductions, (y) the relevant Loan Party shall pay the full amount
deducted to the relevant taxing authority or other authority in
accordance with applicable law and (z) the relevant Loan Party shall
deliver to the applicable Disbursement Agent evidence of such payment.
(b) In addition, each Loan Party agrees to pay any present or
future stamp or documentary taxes (including Australian stamp duty) or
any other excise or property taxes, charges or similar levies of the
United States or any political subdivision thereof or any applicable
foreign jurisdiction, and all liabilities with respect thereto, in each
case arising from any payment made under any Loan Document or from the
execution, delivery or registration of, or otherwise with respect to,
any Loan Document (collectively, "Other Taxes"). Each Loan Party
authorizes the Administrative Agent, Australian Agent and Australian
Collateral Trustee to pay such Other Taxes in the name of such Loan
Party and, for such purpose, to submit a Notice of Borrowing for
Revolving Credit Loans in the currency such Other Taxes are owed (or,
if not available, in Dollars) (i) after the occurrence of any Event of
Default and in respect of any event occurring on the Closing Date and
(ii) otherwise, with the consent of such Loan Party, in the name of the
Loan Party owing such Other Taxes and in an aggregate principal amount
not to exceed all amounts owing in respect of such Other Taxes. If such
a Notice of Borrowing is prepared by any such Agent, the Revolving
Credit Borrowing corresponding thereto shall be made without regard to
the conditions precedent set forth in Section 3.2 (Conditions Precedent
to Each Loan and Letter of Credit) and the proceeds thereof shall be
disbursed to the Disbursement Agent requesting such Borrowing in the
name of the
88
Borrower and shall be used by such Agent solely to pay such Other Taxes
(any excess thereof to be used to repay such Borrowing). The
Administrative Agent may also make Swing Loans and Protective Advances
to pay such Other Taxes in the name of such Loan Party, and each of the
Administrative Agent, the Australian Agent and the Australian
Collateral Trustee may also pay such Other Taxes and seek separate
reimbursement of such Other Taxes hereunder as a Secured Obligation.
(c) Each Loan Party shall, jointly and severally, indemnify
each Lender, Issuer and Agent for the full amount of Taxes and Other
Taxes (including any Taxes and Other Taxes imposed by any jurisdiction
on amounts payable under this Section 2.16) paid by such Lender, Issuer
or Disbursement Agent (as the case may be) 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 Lender, Issuer or Agent (as the case may be) makes
written demand therefor.
(d) Within 30 days after the date of any payment of Taxes or
Other Taxes by any Loan Party, the Company shall furnish to the
applicable Disbursement Agent, at its address referred to in Section
11.8 (Notices, Etc.), the original or a certified copy of a receipt
evidencing payment thereof.
(e) Without prejudice to the survival of any other agreement
of any Loan Party hereunder or under the Guaranties, the agreements and
obligations of such Loan Party contained in this Section 2.16 shall
survive the payment in full of the Obligations.
(f) Prior to the Closing Date in the case of each Non-U.S.
Lender that is a signatory hereto, and on the date of the Assignment
and Acceptance pursuant to which it becomes a Lender in the case of
each other Non-U.S. Lender and from time to time thereafter if
requested by the Company or the Administrative Agent, each Non-U.S.
Lender that is entitled at such time to an exemption from United States
withholding tax, or that is subject to such tax at a reduced rate under
an applicable tax treaty, shall provide the Administrative Agent and
the Company with two completed originals of each of the following: (i)
Form W-8ECI (claiming exemption from withholding because the income is
effectively connected with a U.S. trade or business) or any successor
form, (ii) Form W-8BEN (claiming exemption from, or a reduction of,
withholding tax under an income tax treaty) or any successor form,
(iii) in the case of a Non-U.S. Lender claiming exemption under
Sections 871(h) or 881(c) of the Code, a Form W-8BEN (claiming
exemption from withholding under the portfolio interest exemption) or
any successor form or (iv) any other applicable form, certificate or
document prescribed by the IRS certifying as to such Non-U.S. Lender's
entitlement to such exemption from United States withholding tax or
reduced rate with respect to all payments to be made to such Non-U.S.
Lender under the Loan Documents. Unless the Company and the
Administrative Agent have received forms or other documents
satisfactory to them indicating that payments under any Loan Document
to or for a Non-U.S. Lender are not subject to United States
withholding tax or are subject to such tax at a rate reduced by an
applicable tax treaty, the Loan Parties and the Administrative Agent
shall withhold amounts required to be withheld by applicable
Requirements of Law from such payments at the applicable statutory
rate.
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(g) Prior to the Closing Date in the case of each Lender that
is a signatory hereto, and on the date of the Assignment and Acceptance
pursuant to which it becomes a Lender in the case of each other Lender
and from time to time thereafter if requested by the Company or any
Disbursement Agent, each Lender (other than an Australian Bank) shall,
to the extent such Lender is lawfully able to so, deliver to the
Company duly completed and executed forms and other documents, a blank
copy of which shall have been furnished to such Lender by the Company,
and which are required in Australia, under applicable Requirements of
Law, to be completed in order to obtain an exemption from, or reduced
rate of, deduction, payment or withholding of Taxes to which such
Lender is entitled under applicable Requirements of Law.
(h) No Loan Party shall be required to indemnify any Lender or
Disbursement Agent under this Section 2.16 for any additional Taxes to
the extent that such Taxes or portion thereof would not have been
withheld but for the fact that the representation and warranty in
clause (l)(i) below is incorrect with respect to such Lender on the
date it was made or the failure of such Lender or Disbursement Agent,
as the case may be, to comply with the provisions of clause (f), (g) or
(i) of this Section 2.16.
(i) Any Lender claiming any additional amounts payable
pursuant to this Section 2.16 shall use its reasonable best efforts
(consistent with its internal policy and any Requirement of Law) to
change the jurisdiction of its Applicable Lending Office if the making
of such a change would avoid the need for, or reduce the amount of, any
such additional amounts that would be payable or may thereafter accrue
and would not, in the sole determination of such Lender, be otherwise
disadvantageous to such Lender.
(j) Each Lender, Issuer and Agent agrees that, in the absence
of any Event of Default, to the extent no Obligations are then due and
payable by any Borrower and subject to the provisions of Section 11.7
(Sharing of Payments, Etc.), if and to the extent that any Borrower
pays any amount under this Section 2.16 in excess of its Obligations
due and payable at such time (including any gross-up therefor for any
Taxes the Borrowers have agreed to pay hereunder) and such Lender,
Issuer or Agent receives and retains the benefit of a refund of, or tax
credit attributable to, all or portion of such excess amount, such
Lender, Issuer or Agent shall pay to such Borrower an amount equal to
such refund or credit so as to leave such Lender, Issuer or Agent and
the other Secured Parties hereunder, after such payment, in no better
or worse position that each would have been in if payment of the
relevant additional amount had not been made.
(k) Each of the Syndication Agent and the Administrative Agent
represents and warrants on the Closing Date, for the sole benefit of
the Australian Borrowers, severally and not jointly as follows:
(i) it, together with certain of its Affiliates, has
conducted a syndication of the Facilities as described fully in the
Commitment Letter, dated May 20, 2002, between Acquisition Co., the
Administrative Agent, the Syndication Agent and certain Affiliates
thereof, and in the related engagement letter dated as of such date;
(ii) it has made offers for the sale of Australian
Debentures to at least 10 Persons which, to its knowledge, were not
Associates of each other, the Syndication Agent, the Australian Agent,
the Administrative Agent or the Australian Collateral Trustee, each of
whom, to its knowledge, carries on the business of providing
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finance or investing or dealing in securities in the course or
operating in financial markets for the purposes of Section
128F(3)(a)(i) of the Australian Tax Act; provided, however, that any of
the Syndication Agent, Administrative Agent, Australian Agent and
Australian Collateral Trustee may have received offers made in
accordance herewith; and
(iii) it has obtained representations and warranties
from each Lender pursuant to clause (l) below that such Lender is not,
on the date of such representation and warranty, an Associate of any
Loan Party.
(l) Each Lender and Issuer represents and warrants on the
Closing Date (or on the date it becomes a Lender or Issuer pursuant to
Section 11.2 (Assignments and Participations), for the benefit of the
Borrowers, the Administrative Agent and the Syndication Agent, that (i)
it is not an Associate of any Loan Party for purposes of Section
128F(9) of the Australian Tax Act and (ii) an offer was made to it by
the Administrative Agent or the Syndication Agent to participate in the
Facilities and that such Lender is carrying on the business of
providing finance, or investing or dealing in securities, in the course
of operating in financial markets.
(m) Each of the Syndication Agent, the Administrative Agent,
each Lender and Issuer acknowledges and agrees, for the sole benefit of
the Australian Borrowers, and jointly but not severally undertakes,
that it shall use commercially reasonable efforts to assist the
Australian Borrower, at such Australian Borrower's sole cost and
expense, to obtain information necessary (and not reasonably feasible
for such Australian Borrower to obtain independently) to demonstrate
that the "public offer" test under and as defined in Section 128F of
the Australian Tax Act has been satisfied in relation to the Australian
Debentures or that interest payable under the Australian Debentures is
otherwise exempt from Australian Withholding Tax; provided, however,
that any failure on the part of any Lender to provide such information
pursuant to this clause (m) shall not result in any liability on the
part of such Lender.
SECTION 2.17 SUBSTITUTION OF LENDERS
(a) In the event that (i)(A) any Lender makes a claim under
Section 2.14(c) (Increased Costs) or 2.15 (Capital Adequacy), (B) it
becomes illegal for any Lender to continue to fund or make any External
Rate Loan and such Lender notifies the Company pursuant to Section
2.14(d) (Illegality), (C) any Loan Party is required to make any
payment pursuant to Section 2.16 (Taxes) that is attributable to a
particular Lender or (D) any Lender becomes a Non-Funding Lender, (ii)
in the case of clause (i)(A) above, as a consequence of increased costs
in respect of which such claim is made, the effective rate of interest
payable to such Lender under this Agreement with respect to its Loans
materially exceeds the effective average annual rate of interest
payable to the Requisite Lenders under this Agreement and (iii) in the
case of clause (i)(A), (B) and (C) above, Lenders holding at least 75%
of the Revolving Credit Commitments and Lenders holding at least 75% of
the Term Loans are not subject to such increased costs or illegality,
payment or proceedings (any such Lender, an "Affected Lender"), the
Company may substitute a Lender and, if reasonably acceptable to the
Administrative Agent, any other Eligible Assignee (a "Substitute
Institution") for such Affected Lender hereunder, after delivery of a
written notice (a "Substitution Notice") by the Company to the
Administrative Agent and the Affected Lender within a reasonable time
(in any case not to exceed 90 days) following the occurrence of any of
the events described in clause (i)
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above that the Company intends to make such substitution; provided,
however, that, if more than one Lender claims increased costs,
illegality or right to payment arising from the same act or condition
and such claims are received by the Company within 30 days of each
other, then the Company may substitute all, but not (except to the
extent the Company has already substituted one of such Affected Lenders
before the Company's receipt of the other Affected Lenders' claim) less
than all, Lenders making such claims.
(b) If the Substitution Notice was properly issued under this
Section 2.17, (x) the Affected Lender shall sell, and the Substitute
Institution shall purchase, all rights and claims of such Affected
Lender under the Loan Documents (other than, except as provided below,
the Australian Dollar Sublimit of such Affected Lender then in effect)
and the Substitute Institution shall assume, and the Affected Lender
shall be relieved of, the Affected Lender's Revolving Credit
Commitments, and all other prior unperformed obligations of the
Affected Lender under the Loan Documents (other than in respect of any
damages (other than exemplary or punitive damages, to the extent
permitted by applicable law) in respect of any such unperformed
obligations and other than, except as provided below, in respect of the
Australian Dollar Sublimit (if any) of the Affected Lender) and (y) the
Affected Lender shall be relieved of the Affected Lender's Australian
Dollar Sublimit and all other prior unperformed obligations of the
Affected Lender relating thereto under the Loan Documents (other than
in respect of any damages (other than exemplary or punitive damages, to
the extent permitted by applicable law) in respect of any such
unperformed obligations). Such purchase and sale (and the corresponding
assignment of all rights and claims hereunder) shall be effective on
(and not earlier than) the later of (i) the receipt by the Affected
Lender of the payment in full in cash of any Obligation owing to it
(including its Ratable Portion of the Revolving Credit Outstandings),
(ii) the receipt by the Administrative Agent of an agreement in form
and substance satisfactory to it and the Company whereby the Substitute
Institution shall agree to be bound by the terms hereof and (iii) the
payment in full to the Affected Lender in cash of all fees,
unreimbursed costs and expenses and indemnities accrued and unpaid
through such effective date. Upon the effectiveness of such sale,
purchase and assumption, the Substitute Institution shall become a
"Lender" hereunder for all purposes of this Agreement and, if
applicable, having a Revolving Credit Commitment in the amount of such
Affected Lender's Revolving Credit Commitment assumed by it (and, to
the extent expressly assumed by such Substitute Institution and to the
extent such Substitute Institution shall be (after becoming a Revolving
Credit Lender) an Australian Dollar Lender hereunder, an Australian
Dollar Sublimit in the amount of such Affected Lender's Australian
Dollar Sublimit then in effect) and such Revolving Credit Commitment
and the Australian Dollar Sublimit of the Affected Lender shall be
terminated; provided, however, that all indemnities under the Loan
Documents shall continue in favor of such Affected Lender. If such
Affected Lender was an Australian Dollar Lender and the Substitute
Institution does not assume the Australian Dollar Sublimit of the
Affected Lender, the Affected Lender's Australian Dollar Ratable
Portion of the Australian Dollar Outstandings shall be replaced by, in
accordance with Section 2.11(d) (Conversion and Continuation), Base
Rate Loans made in Dollars as provided in Section 2.11 (Conversion and
Continuation) and the proceeds of the Revolving Dollar Loans made to
effect such conversion shall be given in their entirety to the Affected
Lender and not, as may be otherwise provided hereunder, to the
Australian Dollar Lenders according to their Australian Dollar Ratable
Portions.
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(c) Each Lender agrees that, if it becomes an Affected Lender
and its rights and claims are assigned hereunder to a Substitute
Institution pursuant to this Section 2.17, it shall execute and deliver
to the Administrative Agent an Assignment and Acceptance to evidence
such assignment, together with any Note (if such Loans are evidenced by
a Note) evidencing the Loans subject to such Assignment and Acceptance;
provided, however, that the failure of any Affected Lender to execute
an Assignment and Acceptance shall not render such assignment invalid.
ARTICLE III
CONDITIONS TO LOANS AND LETTERS OF CREDIT
SECTION 3.1 CONDITIONS PRECEDENT TO INITIAL LOANS AND LETTERS
OF CREDIT
The obligation of each Lender to make the Loans requested to
be made by it on the Closing Date and the obligation of each Issuer to Issue
Letters of Credit on the Closing Date is subject to the satisfaction or due
waiver in accordance with Section 11.1 (Amendments, Waivers, Etc.) of each of
the following conditions precedent:
(a) Certain Documents. The Administrative Agent shall have
received on or prior to the Closing Date (and, to the extent any
Borrowing of any Fixed Rate Loans is requested to be made on the
Closing Date, in respect of the Notice of Borrowing for such Fixed Rate
Loans, at least two Business Days prior to the Closing Date) each of
the following, each dated the Closing Date unless otherwise indicated
or agreed to by the Administrative Agent, in form and substance
satisfactory to the Administrative Agent and in sufficient copies for
each Lender:
(i) this Agreement, duly executed and delivered by
each Borrower and, for the account of each Lender requesting the same,
a Note or Notes of each applicable Borrower conforming to the
requirements set forth herein;
(ii) (A) the Domestic Guaranty, duly executed by
Holdings and each Subsidiary of the Company that is a Domestic
Subsidiary and (B) the Non-U.S. Guaranty, duly executed by each other
Subsidiary of the Company;
(iii) the Pledge and Security Agreement, duly
executed by Holdings, the Company and each Domestic Subsidiary
Guarantor, together with each of the following:
(A) evidence satisfactory to the
Administrative Agent that, upon the filing and recording of
instruments delivered at the Closing, the Administrative Agent
(for the benefit of the Secured Parties) shall have a valid
and perfected first priority security interest in the
Collateral covered by the Pledge and Security Agreement,
including (x) such documents duly executed by each Loan Party
as the Administrative Agent may request with respect to the
perfection of its security interests in such Collateral
(including financing statements under the UCC, patent,
trademark and copyright security agreements suitable for
filing with the Patent and Trademark Office or the Copyright
Office,
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CREDIT AGREEMENT
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as the case may be, and other applicable documents under the
laws of any jurisdiction with respect to the perfection of
Liens created by the Pledge and Security Agreement) and (y)
copies of UCC search reports as of a recent date listing all
effective financing statements that name any Loan Party (other
than the Australian Loan Parties) or the Seller as debtor,
together with copies of such financing statements, none of
which shall cover the Collateral, except for those that shall
be terminated on the Closing Date or are otherwise permitted
hereunder;
(B) all certificates and instruments
representing all of the Pledged Certificates being pledged
pursuant to such Pledge and Security Agreement and stock
powers for such share certificates and Instruments executed in
blank; and
(C) all instruments representing Pledged
Instruments being pledged pursuant to such Pledge and Security
Agreement (including the Australian Intercompany Credit
Agreement) duly endorsed in favor of the Administrative Agent
or in blank; and
(D) Control Account Agreements from (1) all
securities intermediaries with respect to all Securities
Accounts and securities entitlements of each Borrower and each
Guarantor and (2) all futures commission agents and clearing
houses with respect to all commodities contracts and
commodities accounts held by each Borrower and each Guarantor;
(iv) Aircraft Security Documents for the aircraft
owned by ▇▇▇▇▇▇▇ International Sales Corporation and any other aircraft
owned by any Loan Party, each in form and substance satisfactory to the
Administrative Agent;
(v) U.S. Mortgages for all of the Real Properties of
the Loan Parties located in the United States and identified on Part I
(Owned Properties) of Schedule 4.20 (Real Property) (except as may be
agreed to by the Administrative Agent), together with all U.S. Mortgage
Supporting Documents relating thereto;
(vi) each Australian Share Mortgage, duly executed by
the Australian Subsidiary listed therein as party thereto;
(vii) each Australian Charge, duly executed by the
Australian Subsidiary listed therein as party thereto;
(viii) the Australian Security Trust Deed, duly
executed by each Loan Party listed herein as party thereto;
(ix) Australian Mortgages for all of the Real
Properties of the Loan Parties located in Australia and identified on
Schedule 4.20 (Real Property) (except as may be agreed to by the
Administrative Agent) duly executed by the Australian Subsidiary owning
the Real Property subject thereto, together with each Australian
Mortgage Supporting Document relating thereto;
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CREDIT AGREEMENT
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(x) Appropriate, duly executed Australian
registration forms and statutory declaration and a multi-jurisdictional
mortgage statement from a director or secretary of each Australian
Subsidiary setting out the value and location of the assets of such
Company appropriate for use to determine Australian stamp duty;
(xi) the Mexican Stock Pledge, duly executed by the
Company, Swift Beef Company, a Delaware corporation, and any Subsidiary
of the Company organized and existing under the laws of Mexico,
together with certificates representing all of the Stock of such
Subsidiaries and stock powers duly executed in blank by the Company;
(xii) each Japanese Stock Pledge, duly executed by
the Company and any Subsidiary of the Company organized and existing
under the laws of Japan, together with certificates representing all of
the Stock of such Subsidiaries and stock powers duly executed in blank
by the Company;
(xiii) an executed statement of funds flow
authorizing the flow of funds necessary to consummate the Transactions
(the "Sources and Uses Statement") together with appropriate Notices of
Borrowing and Letters of Credit Requests for any Loans or Letters of
Credit requested to be made on the Closing Date;
(xiv) a favorable opinion of (A) ▇▇▇▇▇▇ & ▇▇▇▇▇▇
L.L.P., counsel to the Loan Parties, in substantially the form of
Exhibit G-1 (Form of Opinion of U.S. Counsel for the Loan Parties), (B)
Mallesons ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, counsel to the Loan Parties in Australia, in
substantially the form of Exhibit G-2 (Form of Opinion of Australian
Counsel for the Loan Parties), (C) counsel to the Loan Parties in
Mexico, Japan, Delaware, Colorado and Utah, in each case addressed to
the Administrative Agent and the Lenders and addressing such other
matters as any Lender through the Administrative Agent may reasonably
request and (D) counsel to the Administrative Agent as to the
enforceability of this Agreement and the other Loan Documents to be
executed on the Closing Date;
(xv) a copy of each Related Document (including a
certificate from each party to the Acquisition Agreement that, subject
only to the funding of the initial Loan hereunder, such party is
prepared to consummate the Transactions, which certificate shall be
made for the benefit of the Administrative Agent (and its counsel) and
the Lenders and Issuers hereunder) and each Disclosure Document
certified as being complete and correct by a Responsible Officer of the
Company;
(xvi) a copy of the articles or certificate of
incorporation (or equivalent Constituent Document) of each Loan Party,
and (A) in the case of the Company, Holdings or a Domestic Subsidiary
certified as of a recent date by the Secretary of State of the state of
organization of such Loan Party and (B) otherwise, certified by a
Responsible Officer of such Loan Party, in each case together with, if
applicable in the relevant jurisdiction, certificates of such Person
attesting to the good standing of each such Loan Party;
(xvii) a certificate of the Secretary or an Assistant
Secretary of each Loan Party certifying (A) the names and true
signatures of each officer of such Loan Party that has been authorized
to execute and deliver any Loan Document or other document required
hereunder to be executed and delivered by or on behalf of such Loan
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CREDIT AGREEMENT
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Party, (B) the by-laws (or equivalent Constituent Document) of such
Loan Party as in effect on the date of such certification, (C) the
resolutions of such Loan Party's Board of Directors (or equivalent
governing body) approving and authorizing the execution, delivery and
performance of this Agreement and the other Loan Documents to which it
is a party and acknowledging that such Loan Documents will benefit such
Loan Party and (D) that there have been no changes in the certificate
of incorporation (or equivalent Constituent Document) of such Loan
Party from the certificate of incorporation (or equivalent Constituent
Document) delivered pursuant to clause (xvi) above;
(xviii) at the Company's option, (A) a certificate of
a Responsible Officer of each Borrower, stating that such Borrower is
Solvent after giving effect to the initial Loans and Letters of Credit,
the application of the proceeds thereof in accordance with Section 7.9
(Use of Proceeds; Ranking) and the payment of all estimated legal,
accounting and other fees related hereto and thereto or (B) a solvency
opinion from an independent financial consultant reasonably acceptable
to the Administrative Agent and the Syndication Agent, together with
such other evidence reasonably requested by the Administrative Agent,
confirming the solvency of each of Holdings and the Company after
giving effect to the Transactions;
(xix) a certificate of a Responsible Officer of each
Borrower to the effect that (A) the condition set forth in Section
3.2(b) (Conditions Precedent to Each Loan and Letter of Credit) has
been satisfied and (B) no litigation not listed on Schedule 4.7
(Litigation) shall have been commenced against any Loan Party or any of
its Subsidiaries that would have a Material Adverse Effect;
(xx) powers of attorney of each Mexican Subsidiary
notarized by a Mexican notary public (including authority for actos de
administracion and suscripcion de titulos de credito), authorizing the
making and performance by it of the Non-U.S. Guaranty;
(xxi) (i) An letter duly executed and delivered by
the Process Agent dated on or prior to the date hereof pursuant to
which it accepts its appointment as Process Agent hereunder and under
the Guaranties and (ii) a notarized power of attorney of each Mexican
Subsidiary appointing such Process Agent pursuant to Mexican law;
(xxii) evidence satisfactory to the Administrative
Agent that the insurance policies required by Section 7.5 (Maintenance
of Insurance) and any Collateral Document are in full force and effect,
together with, unless otherwise agreed by the Administrative Agent,
endorsements naming the Administrative Agent, on behalf of the Secured
Parties, as an additional insured or loss payee under all insurance
policies to be maintained with respect to the properties of Holdings,
the Company and its Subsidiaries; and
(xxiii) such other certificates, documents,
agreements and information respecting any Loan Party as any Lender
through the Administrative Agent may reasonably request.
(b) Landlord Waivers and Bailee's Letters. The Administrative
Agent shall have received such Landlord Waivers and Bailee's Letters as
the Company shall have obtained on or before the Closing Date through
its commercially reasonable efforts.
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CREDIT AGREEMENT
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(c) Fee and Expenses Paid. There shall have been paid to the
Administrative Agent, for the account of the Administrative Agent, the
Australian Agent, the Australian Collateral Trustee and the Lenders and
Issuers, as applicable, all fees and expenses (including reasonable
fees and expenses of counsel) due and payable on or before the Closing
Date (including all such fees described in the Fee Letter) and
submitted in writing to the Company prior to such date.
(d) Consummation of Transaction and Related Documents. The
Administrative Agent shall be satisfied (and may, but shall not be
obligated to, rely on the receipt of a certificate from any Loan Party
or Affiliate thereof for all or part of such purpose) that (i) the
terms and conditions of the Acquisition Agreement shall not have been
amended, waived or modified without the approval of the Administrative
Agent (other than non-material amendments, waivers and modifications to
such terms that do not, in the aggregate, materially adversely affect
the interests of the Administrative Agent and the Lenders), (ii) the
Related Documents (including the Tax Sharing Agreement, the
Contribution Agreement, the Cost Indemnification Letter and the Seller
Letter) shall have been approved by all corporate action of each party
thereto (including, where applicable, the Company), shall have been
executed and delivered by each such party, shall be in full force and
effect and there shall not have occurred and be continuing any material
breach or default thereunder, (iii) subject only to the funding of the
initial Loans hereunder, all conditions precedent to the consummation
of the Acquisition shall have been satisfied or waived with the consent
of the Administrative Agent, (iv) the Sponsors' Equity Investment shall
have been made, (v) the Senior Notes shall have been issued in
accordance with the Senior Notes Indenture and the Company shall have
received gross proceeds thereof in an aggregate principal amount not
less than $250,000,000, (vi) the Subordinated Notes shall have been
issued in accordance with the Subordinated Notes Indenture and the
Company shall have received gross proceeds thereof in an aggregate
principal amount not less than $150,000,000, (vii) subject only to the
funding of the initial Loans hereunder, the other Transactions shall
have been consummated in accordance with the Acquisition Agreement and
other Related Documents and all applicable Requirements of Law and all
representations and warranties contained in the Acquisition Agreement
and the other Related Documents shall be true and correct in all
material respects on the Closing Date and (viii) good and marketable
title to the assets purported to be transferred as of the Closing Date
by the terms of the Acquisition Agreement and the Related Documents,
free and clear of all Liens other than as may be permitted pursuant to
Section 8.2 (Liens, Etc.), shall be transferred to the Company
concurrently with the making of the initial Loans under this Agreement.
(e) Approval from U.S. Governmental Authorities. The waiting
period (and any extension thereof) applicable to the consummation of
the Acquisition under the ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Antitrust Improvements Act
of 1976 shall have expired or been terminated without any action being
taken by any Governmental Authority adverse to the consummation of the
Acquisition.
(f) Approval from Australian Governmental Authorities. The
Administrative Agent shall be satisfied that the Company has received
approval of the Transactions from the Australian Foreign Investment
Review Board under the Australian Foreign Acquisitions and Takeovers
Act.
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CREDIT AGREEMENT
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(g) Minimum Availability. On the Closing Date, after giving
effect to the Transactions and to any Borrowings and borrowings of
Swing Loans on the Closing Date, the Aggregate Available Revolving
Credit shall be greater than $130,000,000.
(h) The Closing Date shall occur on or before September 30,
2002.
SECTION 3.2 CONDITIONS PRECEDENT TO EACH LOAN AND LETTER OF
CREDIT
The obligation of each Lender on any date (including the
Closing Date) to make any Loan and of each Issuer on any date (including the
Closing Date) to Issue any Letter of Credit is subject to the satisfaction of
each of the following conditions precedent:
(a) Request for Borrowing or Issuance of Letter of Credit.
With respect to any Loan, the Administrative Agent shall have received
a duly executed Notice of Borrowing (or, in the case of Swing Loans, a
duly executed Swing Loan Request), and, with respect to any Letter of
Credit, the Administrative Agent and the Issuer thereof shall have
received a duly executed Letter of Credit Request.
(b) Representations and Warranties; No Defaults. The following
statements shall be true on the date of such Loan or Issuance, both
before and after giving effect thereto and, in the case of any Loan, to
the application of the proceeds therefrom:
(i) the representations and warranties set forth in
Article IV (Representations and Warranties) and in the other Loan
Documents shall be true and correct in all material respects on and as
of any such date with the same effect as though made on and as of such
date, except to the extent such representations and warranties
expressly relate to an earlier date, in which case such representations
and warranties shall have been true and correct in all material
respects as of such earlier date; and
(ii) no Default or Event of Default shall have
occurred and be continuing.
(c) Borrowing Base. The Borrowers shall have delivered the
Borrowing Base Certificate required to be delivered by Section 6.12(a)
(Borrowing Bases Determination). After giving effect to the Loans or
Letters of Credit requested to be made or Issued on any such date and
the use of proceeds thereof, (i) the sum of the Revolving Credit
Outstandings at such time and the aggregate principal amount of Term
Loans outstanding at such time shall not exceed the Aggregate Maximum
Credit at such time and (ii) for each Borrower, the Revolving Credit
Outstandings of such Borrower shall not exceed the Maximum Available
Borrowing Base of such Borrower.
(d) Borrowings of Australian Company. For Borrowings and
borrowings of Swing Loans of, or on behalf of, the Australian Company
only, the Acquisition shall have been consummated and the Australian
Company shall be a Wholly-Owned Subsidiary of Australian Holdings.
(e) No Legal Impediments. The making of the Loans or the
Issuance of such Letter of Credit on such date does not violate any
Requirement of Law on the date of or immediately following such Loan or
Issuance of such Letter of Credit and is not enjoined, temporarily,
preliminarily or permanently.
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CREDIT AGREEMENT
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Each submission by any Borrower to any Disbursement Agent of a Notice of
Borrowing or a Swing Loan Request and the acceptance by such Borrower of the
proceeds of each Loan requested therein, and each submission by any Borrower to
any Issuer of a Letter of Credit Request, and the Issuance of each Letter of
Credit requested therein, shall be deemed to constitute a representation and
warranty by such Borrower as to the matters specified in clause (b) above on the
date of the making of such Loan or the Issuance of such Letter of Credit.
SECTION 3.3 DETERMINATIONS OF INITIAL BORROWING CONDITIONS
For purposes of determining compliance with the conditions
specified in Section 3.1 (Conditions Precedent to Initial Loans and Letters of
Credit), each Lender shall be deemed to have consented to, approved, accepted or
be satisfied with, each document or other matter required thereunder to be
consented to or approved by or acceptable or satisfactory to the Lenders unless
an officer of the Administrative Agent responsible for the transactions
contemplated by the Loan Documents shall have received notice from such Lender
prior to the initial Borrowing, borrowing of Swing Loans or Issuance hereunder
specifying its objection thereto and such Lender shall not have made available
to the applicable Disbursement Agent such Lender's Ratable Portion (or, as the
case may be, Australian Dollar Ratable Portion) of such Borrowing or Swing
Loans.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
To induce the Lenders, the Issuers and the Agents to enter
into this Agreement, each of Holdings and the Company (and, insofar as the
following relates to Australian Holdings or any of its Subsidiaries, each
Australian Borrower) represents and warrants each of the following to the
Lenders, the Issuers and the Agents on and as of the Closing Date and after
giving effect to the Acquisition and the making of the Loans and the other
financial accommodations on the Closing Date and on and as of each date as
required by Section 3.2(b)(i) (Conditions Precedent to Each Loan and Letter of
Credit):
SECTION 4.1 CORPORATE EXISTENCE; COMPLIANCE WITH LAW
Each of Holdings, the Company and the Company's Subsidiaries
(a) is duly organized, validly existing and in good standing under the laws of
the jurisdiction of its organization, (b) is duly qualified to do business and
in good standing under the laws of each jurisdiction where such qualification is
necessary (including, with respect to the Australian Subsidiaries, under the
laws of the jurisdiction of its principal place of business), except where the
failure to be so qualified or in good standing would not, in the aggregate, have
a Material Adverse Effect, (c) has all requisite power and authority and the
legal right to own, pledge, mortgage and operate its properties, to lease the
property it operates under lease and to conduct its business as now or currently
proposed to be conducted, (d) is in compliance with its Constituent Documents,
(e) is in compliance with all applicable Requirements of Law except where the
failure to be in compliance would not, in the aggregate, have a Material Adverse
Effect and (f) has all necessary Permits from or by, has made all necessary
filings with, and has given all necessary notices to, each Governmental
Authority having jurisdiction, to the extent required for such ownership,
operation and conduct, except for Permits or filings that can be obtained or
made
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by the taking of ministerial action to secure the grant or transfer thereof or
the failure to obtain or make would not, in the aggregate, have a Material
Adverse Effect.
SECTION 4.2 CORPORATE POWER; AUTHORIZATION; ENFORCEABLE
OBLIGATIONS
(a) The execution, delivery and performance by each Loan Party
of the Loan Documents to which it is a party and the consummation of
the transactions contemplated thereby:
(i) are within such Loan Party's corporate, limited
liability company, partnership or other powers;
(ii) have been or, at the time of delivery thereof
pursuant to Article III (Conditions To Loans And Letters Of Credit)
will have been duly authorized by all necessary action, including the
consent of shareholders, partners and members where required;
(iii) do not and will not (A) contravene such Loan
Party's or any of its Subsidiaries' respective Constituent Documents,
(B) violate in any material respect any other Requirement of Law
applicable to such Loan Party (including, as applicable, Regulations T,
U and X of the Federal Reserve Board), or any order or decree of any
Governmental Authority or arbitrator applicable to such Loan Party, (C)
in any material respect, result in the breach of, or constitute a
default under, or result in or permit the termination or acceleration
of, any Related Document or any other material Contractual Obligation
of such Loan Party or any of its Subsidiaries or (D) result in the
creation or imposition of any Lien upon any property of such Loan Party
or any of its Subsidiaries, other than pursuant to the Collateral
Documents; and
(iv) do not require the consent of, authorization by,
approval of, notice to, or filing or registration with, any
Governmental Authority or any other Person, other than those listed on
Schedule 4.2 (Consents) and that have been or will be, prior to the
Closing Date, obtained or made, copies of which have been or will be
delivered to the Administrative Agent pursuant to Section 3.1
(Conditions Precedent to Initial Loans and Letters of Credit), and each
of which on the Closing Date will be in full force and effect and, with
respect to the Collateral, filings required to perfect the Liens
created by the Collateral Documents.
(b) This Agreement has been, and each of the other Loan
Documents will have been upon delivery thereof pursuant to the terms of
this Agreement, duly executed and delivered by each Loan Party party
thereto. This Agreement is, and the other Loan Documents will be, when
delivered hereunder, the legal, valid and binding obligation of each
Loan Party party thereto, enforceable against such Loan Party in
accordance with its terms, except that 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.
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SECTION 4.3 OWNERSHIP OF COMPANY; SUBSIDIARIES
(a) The authorized capital stock of the Company consists of
1,000 shares of common stock, $0.01 par value per share, of which 1,000
shares are issued and outstanding. All of the outstanding capital stock
of the Company has been validly issued, is fully paid and
non-assessable and is owned beneficially and of record by Holdings,
free and clear of all Liens other than the Lien in favor of the Secured
Parties created by the Pledge and Security Agreement. No Stock of the
Company is subject to any option, warrant, right of conversion or
purchase or any similar right. There are no agreements or
understandings to which the Company is a party with respect to the
voting, sale or transfer of any shares of Stock of the Company or any
agreement restricting the transfer or hypothecation of any such shares.
(b) Set forth on Schedule 4.3 (Ownership of Subsidiaries) is a
complete and accurate list showing, as of the Closing Date, all
Subsidiaries of the Company and, as to each such Subsidiary, the
jurisdiction of its organization, the number of shares of each class of
Stock authorized (if applicable), the number outstanding on the Closing
Date and the number and percentage of the outstanding shares of each
such class owned (directly or indirectly) by the Company. No Stock of
any Subsidiary of the Company is subject to any outstanding option,
warrant, right of conversion or purchase of any similar right. All of
the outstanding Stock of each Subsidiary of the Company owned (directly
or indirectly) by the Company has been validly issued, is fully paid
and non-assessable (to the extent applicable) and is owned by the
Company or a Subsidiary of the Company, free and clear of all Liens
(other than the Lien in favor of the Secured Parties created pursuant
to the Collateral Documents), options, warrants, rights of conversion
or purchase or any similar rights. Neither the Company nor any such
Subsidiary is a party to, or has knowledge of, any agreement
restricting the transfer or hypothecation of any Stock of any such
Subsidiary, other than the Loan Documents. Neither Holdings nor the
Company owns or holds, directly or indirectly, any Stock of any Person
other than such Subsidiaries and Investments permitted by Section 8.3
(Investments) and, in the case of Holdings, the Stock of the Company.
SECTION 4.4 FINANCIAL STATEMENTS
(a) The Consolidated balance sheet of the Acquired Companies
as at May 27, 2001 and May 26, 2002, and the related Consolidated
statements of income, changes in stockholders' net investment and
advances, and cash flows of the Acquired Companies for the fiscal year
then ended, certified, insofar as such statements relate to the
red-meat business thereof, by the Company's Accountants, copies of
which have been furnished to each Lender, fairly present the
Consolidated financial condition of the Acquired Companies as at such
dates and the Consolidated results of the operations of the Acquired
Companies for the period ended on such dates, all in conformity with
GAAP.
(b) Neither the Company nor any of its Subsidiaries has any
material obligation, contingent liability or liability for taxes,
long-term leases or unusual forward or long-term commitment that is not
reflected in the Financial Statements referred to in clause (a) above
or in the notes thereto and not otherwise permitted by this Agreement.
(c) The Projections have been prepared by the Company in light
of the past operations of the business of the Acquired Companies, and
reflect projections for the
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five-year period beginning on June 1, 2002 on a month by month basis
for the first year and on a year by year basis thereafter. The
Projections are based upon estimates and assumptions stated therein,
all of which the Company believes to be reasonable in light of current
conditions and current facts known to the Company and, as of the
Closing Date, reflect the Company's good faith and reasonable estimates
of the future financial performance of the Company and its Subsidiaries
and of the other information projected therein for the periods set
forth therein (it being understood that such Projections are subject to
significant uncertainties and contingencies, many of which are beyond
the control of the Company and its Subsidiaries and that no assurance
can be given that such projections will be met).
(d) The unaudited pro forma consolidated and consolidating
balance sheet of the Company and its Subsidiaries (the "Pro Forma
Balance Sheet"), a copy of which has been delivered to each Lender, has
been prepared as of June 30, 2002, fairly presents as of such date, on
a Pro Forma Basis after giving effect to the Transactions (and the
Borrowings and borrowings of Swing Loans to be made on the Closing
Date), the consolidated financial condition of the Company and its
Subsidiaries, and the assumptions expressed therein were believed by
the management of the Company to be reasonable based on the information
available to the Company at the time so furnished and on the Closing
Date.
SECTION 4.5 MATERIAL ADVERSE CHANGE
Since May 27, 2001, there has been no Material Adverse Change
and there have been no events or developments that, in the aggregate, have had a
Material Adverse Effect except as reflected on the unaudited Financial
Statements for the Acquired Companies as at February 24, 2002 delivered to the
Administrative Agent prior to the Closing Date and on Schedule 4.5 (Additional
Disclosures).
SECTION 4.6 SOLVENCY
After giving effect to (a) the Loans, Letter of Credit
Obligations and advances under the Australian Intercompany Credit Agreement to
be made or extended on the Closing Date or such other date as Loans and Letter
of Credit Obligations requested hereunder are made or extended, (b) the
disbursement of the proceeds of such Loans pursuant to the instructions of the
Borrowers, (c) the Transactions and the consummation of the other financing
transactions contemplated hereby and (d) the payment and accrual of all
transaction costs in connection with the foregoing, each Loan Party is Solvent.
SECTION 4.7 LITIGATION
Except as set forth on Schedule 4.7 (Litigation), there are no
pending or, to the knowledge of any Borrower, threatened actions, investigations
or proceedings affecting Holdings, the Company or any of the Company's
Subsidiaries before any court, Governmental Authority or arbitrator other than
those that, individually or in the aggregate, would not have a Material Adverse
Effect. The performance of any action by any Loan Party required or contemplated
by any Loan Document or any Related Document is not restrained or enjoined
(either temporarily, preliminarily or permanently).
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SECTION 4.8 TAXES
(a) Except as set forth on Schedule 4.8 (Taxes), all federal,
state, local and foreign income and franchise and other material tax
returns, reports and statements (collectively, the "Tax Returns")
required to be filed by the Company or any of its Tax Affiliates have
been filed with the appropriate Governmental Authorities in all
jurisdictions in which such Tax Returns are required to be filed, all
such Tax Returns are true and correct in all material respects, and all
taxes, charges and other impositions reflected therein or otherwise due
and payable have been paid prior to the date on which any fine,
penalty, interest, late charge or loss may be added thereto for
non-payment thereof except where contested in good faith and by
appropriate proceedings if adequate reserves therefor have been
established on the books of the Company or such Tax Affiliate in
conformity with GAAP. Except as set forth on Schedule 4.8 (Taxes), no
Tax Return is under audit or examination by any Governmental Authority
and no notice of such an audit or examination or any assertion of any
claim for Taxes has been given or made by any Governmental Authority.
Proper and accurate amounts have been withheld by the Company and each
of its Tax Affiliates from their respective employees for all periods
in full and complete compliance with the tax, social security and
unemployment withholding provisions of applicable Requirements of Law
and such withholdings have been timely paid to the respective
Governmental Authorities.
(b) Except as set forth on Schedule 4.8 (Taxes), none of the
Company or any of its Tax Affiliates has (i) executed or filed with the
IRS or any other Governmental Authority any agreement or other document
extending, or having the effect of extending, the period for the filing
of any Tax Return or the assessment or collection of any charges, (ii)
incurred any obligation under any tax sharing agreement or arrangement
other than those of which the Administrative Agent has received a copy
prior to the date hereof or (iii) been a member of an affiliated,
combined or unitary group other than the group of which the Company (or
its Tax Affiliate) is the common parent.
SECTION 4.9 FULL DISCLOSURE
(a) The information prepared or furnished by or on behalf of
Holdings or any Borrower in connection with this Agreement or the
Related Documents or the consummation of the transactions contemplated
hereunder and thereunder taken as a whole, including the information
contained in the Disclosure Documents, does not contain any untrue
statement of a material fact or omit to state a material fact necessary
to make the statements contained therein or herein not misleading in
light of the circumstances under which such statements were or are
made. All facts known to any Borrower and material to an understanding
of the financial condition, business, properties or prospects of the
Company and its Subsidiaries taken as one enterprise have been
disclosed to the Lenders.
(b) The Company has delivered to each Lender a true, complete
and correct copy of each Disclosure Document. Each Disclosure Document
complies as to form in all material respects with all applicable
requirements of all applicable state and Federal securities laws.
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SECTION 4.10 MARGIN REGULATIONS
No part of the proceeds of any Borrowings or borrowings of
Swing Loans will be used, whether directly or indirectly, for any purpose that
entails a violation of Regulations T, U, X of the Federal Reserve Board.
SECTION 4.11 NO BURDENSOME RESTRICTIONS; NO DEFAULTS
(a) None of Holdings or any of its Subsidiaries (i) is a party
to any Contractual Obligation the compliance with one or more of which
would have, in the aggregate, a Material Adverse Effect or the
performance of which by any thereof, either unconditionally or upon the
happening of an event, would result in the creation of a Lien (other
than a Lien permitted under Section 8.2 (Liens, Etc.)) on the assets of
any thereof or (ii) is subject to one or more charter or corporate
restrictions that would, in the aggregate, have a Material Adverse
Effect.
(b) None of Holdings or any of its Subsidiaries is in default
under or with respect to any Contractual Obligation owed by it and, to
the knowledge of each Borrower, no other party is in default under or
with respect to any Contractual Obligation owed to any Loan Party or to
any Subsidiary of any Loan Party other than those defaults that, in the
aggregate, would not have a Material Adverse Effect.
(c) No Default or Event of Default has occurred and is
continuing.
(d) To the knowledge of each Borrower, there are no
Requirements of Law applicable to any Loan Party or any Subsidiary of
any Loan Party the compliance with which by such Loan Party or such
Subsidiary, as the case may be, would, in the aggregate, have a
Material Adverse Effect.
SECTION 4.12 INVESTMENT COMPANY ACT; PUBLIC UTILITY HOLDING
COMPANY ACT
None of the Company or any of its Subsidiaries is (a) an
"investment company" or a company "controlled by" an "investment company,"
within the meaning of the Investment Company Act of 1940, as amended or (b) a
"holding company," or an "affiliate" or a "holding company" or a "subsidiary
company" of a "holding company" within the meaning of the Public Utility Holding
Company Act of 1935, as amended.
SECTION 4.13 USE OF PROCEEDS
The proceeds of the Loans, advances under the Australian
Intercompany Credit Agreement and the Letters of Credit are being used by each
Borrower solely (a) to finance the Acquisition and for the payment of related
transaction costs, fees and expenses and to finance other payments related to
the Transactions, in each case as set forth in the Sources and Uses Statement,
(b) for the payment of transaction costs, fees and expenses incurred in
connection with this Agreement and the transactions contemplated hereby and (c)
for working capital and general corporate purposes.
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SECTION 4.14 RANKING
(a) The Loans and other Obligations payable hereunder and
under the Notes (if any) and the other Loan Documents are direct,
unconditional and unsubordinated general obligations of the Borrowers,
are entitled to the benefit and security of the Collateral as provided
herein, and rank, and will at all times rank, at least pari passu in
right of payment with all other present and future outstanding
unsecured and unsubordinated Indebtedness of the Loan Parties, other
than statutorily preferred obligations; provided, however, that nothing
contained in this Section 4.14 (but subject to other provisions hereof)
shall obligate the Lenders to share Collateral with any other creditor
of any Borrower or obligate any other creditor of any Borrower to share
its collateral with the Lenders and unsubordinated creditors of such
Borrower.
(b) The Secured Obligations constitute "Senior Debt" as
defined in the Subordinated Notes Indenture and under any term of
similar application defined in any Permitted Unsecured Debt Document
with respect to any Additional Unsecured Indebtedness that is junior to
the Senior Notes. No Indebtedness (other than the Secured Obligations
and obligations under the Replacement Credit Lines) has been designated
as "Designated Senior Debt" under the Subordinated Notes Indenture.
SECTION 4.15 INSURANCE
All policies of insurance (including all self insurance
arrangements) of any kind or nature of the Company or any of its Subsidiaries,
including policies of life, fire, theft, product liability, public liability,
property damage, other casualty, employee fidelity, workers' compensation and
employee health and welfare insurance, are in full force and effect and are of a
nature and provide such coverage as is sufficient and as is customarily carried
by businesses of the size and character of such Person.
SECTION 4.16 LABOR MATTERS
(a) There are no strikes, work stoppages, slowdowns or
lockouts pending or threatened against or involving the Company or any
of its Subsidiaries, other than those that, in the aggregate, would not
have a Material Adverse Effect.
(b) There are no unfair labor practices, labor grievances,
labor complaints or labor arbitrations pending, or, to each Borrower's
knowledge, threatened, against or involving the Company or any of its
Subsidiaries, other than those that, in the aggregate, would not have a
Material Adverse Effect.
(c) Except as set forth on Schedule 4.16 (Labor Matters), as
of the Closing Date, there is no collective bargaining agreement
covering any employee of the Company or its Subsidiaries.
(d) Schedule 4.16 (Labor Matters) sets forth, as of the date
hereof, all material consulting agreements, executive employment
agreements, executive compensation plans, deferred compensation
agreements, employee stock purchase and stock option plans and
severance plans of the Company and any of its Subsidiaries.
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SECTION 4.17 COMPENSATION PLANS; ERISA
(a) Schedule 4.17 (List of Plans) separately identifies as of
the date hereof all Multiemployer Plans, all Compensation Plans and all
of the employee benefit plans within the meaning of Section 3(3) of
ERISA to which Holdings, the Company or any of the Company's
Subsidiaries has any obligation or liability, contingent or otherwise.
None of the Company, any of its Subsidiaries or any ERISA Affiliate has
any obligation or liability, contingent or otherwise, with respect to
any Title IV Plan.
(b) Each employee benefit plan of Holdings or any of its
Subsidiaries intended to qualify under Section 401 of the Code does so
qualify, and any trust created thereunder is exempt from tax under the
provisions of Section 501 of the Code, except where such failures, in
the aggregate, would not have a Material Adverse Effect.
(c) Each Compensation Plan and each employee benefit plan of
Holdings or any of its Subsidiaries is in compliance in all material
respects with applicable provisions of ERISA, the Code and other
Requirements of Law except for non-compliances that, in the aggregate,
would not have a Material Adverse Effect.
(d) There has been no, nor is there reasonably expected to
occur, any ERISA Event other than those that, in the aggregate, would
not have a Material Adverse Effect.
(e) None of Holdings, any of its Subsidiaries or any ERISA
Affiliate would have any Withdrawal Liability, either individually or
in the aggregate, as a result of a complete withdrawal as of the date
hereof from any Multiemployer Plan in excess of $7,000,000.
(f) None of Holdings, the Borrowers and their respective
Subsidiaries have taken any action (including any steps to terminate
any Compensation Plan), nor made any omission (including any failure to
make any required contributions to any Compensation Plan), with respect
to any Compensation Plan, in either case that could reasonably be
expected to (i) result in liabilities for Holdings, the Company or any
of the Company's Subsidiaries the Dollar Equivalent of which shall be
in excess of $7,000,000 in the aggregate, (ii) give rise to a Lien over
any of the properties, assets or revenues of Holdings, the Company or
any of the Company's Subsidiaries or (iii) result in a Material Adverse
Effect.
SECTION 4.18 ENVIRONMENTAL MATTERS
Except as disclosed in the Environmental Reports or on
Schedule 4.18 (Environmental Matters):
(a) the operations of the Company and each of its Subsidiaries
have been and, as of the date hereof, are in compliance with all
Environmental Laws, including obtaining and complying with all required
environmental, health and safety Permits, other than non-compliances
that, in the aggregate, would not have a reasonable likelihood of the
Company and its Subsidiaries incurring Environmental Liabilities and
Costs after the date hereof the Dollar Equivalent of which shall exceed
$7,000,000;
(b) none of the Company or any of its Subsidiaries or any Real
Property currently or, to the knowledge of each Borrower, previously
owned, operated or leased by
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or for the Company or any of its Subsidiaries is subject to any pending
or, to the knowledge of each Borrower, threatened, claim, order,
agreement, notice of violation, notice of potential liability or is the
subject of any pending or threatened proceeding or governmental
investigation under or pursuant to Environmental Laws other than those
that, in the aggregate, are not reasonably likely to result in the
Company and its Subsidiaries incurring Environmental Liabilities and
Costs the Dollar Equivalent of which shall exceed $7,000,000;
(c) none of the Company or any of its Subsidiaries is a
treatment, storage or disposal facility requiring a Permit under the
Resource Conservation and Recovery Act, 42 U.S.C. Section 6901 et seq.,
the regulations thereunder or any state analog, in each case to the
extent applicable;
(d) as of the date hereof, there are no facts, circumstances
or conditions arising out of or relating to the operations or ownership
of the Company or any of its Subsidiaries or of Real Property owned,
operated or leased by the Company or any of its Subsidiaries that are
not specifically included in the financial information furnished to the
Lenders other than those that, in the aggregate, would not have a
reasonable likelihood of the Company and its Subsidiaries incurring
Environmental Liabilities and Costs the Dollar Equivalent of which
shall exceed $7,000,000;
(e) as of the date hereof, no Environmental Lien has attached
to any property of the Company or any of its Subsidiaries and, to the
knowledge of each Borrower, no facts, circumstances or conditions exist
that could reasonably be expected to result in any such Lien attaching
to any such property; and
(f) the Company and each of its Subsidiaries have provided the
Lenders with copies of all material environmental audits, studies,
assessments, inspections, investigations or other environmental reports
relating to the operations of the Company or any of its Subsidiaries or
any Real Property of any of them that are in the possession, custody or
control of the Company or any of its Subsidiaries.
SECTION 4.19 INTELLECTUAL PROPERTY
Except as set forth on Schedule 4.19 (Intellectual Property),
the Company and its Subsidiaries own or license or otherwise have the right to
use all licenses, permits, patents, patent applications, trademarks, trademark
applications, service marks, trade names, copyrights, copyright applications,
Internet domain names, franchises, authorizations and other intellectual
property rights (including all Intellectual Property as defined in the Pledge
and Security Agreement) that are necessary for the operations of their
respective businesses, including all trade names associated with any private
label brands of the Company or any of its Subsidiaries. Except as set forth on
Schedule 4.19 (Intellectual Property), to each Borrower's knowledge, no license,
permit, patents, patent application, trademark, trademark application, service
▇▇▇▇, trade name, copyright, copyright application, Internet domain names,
franchise, authorization, other intellectual property rights (including all
material Intellectual Property as defined in the Pledge and Security Agreement),
slogan or other advertising device, product, process, method, substance, part or
component, or other material now employed, by the Company or any of its
Subsidiaries materially infringes upon or conflicts with any rights owned by any
other Person, and no claim or litigation regarding any of the foregoing is
pending or threatened.
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SECTION 4.20 TITLE; REAL PROPERTY
(a) Each of the Company and its Subsidiaries has good and
marketable or indefeasible title to, or valid leasehold interests in,
all Real Property set forth on Schedule 4.20 (Real Property) and good
title to all personal property, in each case that is purported to be
owned or leased by it, including those reflected on the most recent
Financial Statements delivered by the Company, and none of such
properties and assets is subject to any Lien, except Liens permitted
under Section 8.2 (Liens, Etc.). The Company and its Subsidiaries have
received all deeds, assignments, waivers, consents, non-disturbance and
recognition or similar agreements, bills of sale and other documents
and have duly effected all recordings, filings and other actions
necessary to establish, protect and perfect the Company's and its
Subsidiaries' right, title and interest in and to all such property.
(b) Set forth on Schedule 4.20 (Real Property) is a complete
and accurate list of all material Real Property leased or owned by each
Loan Party and its Subsidiaries and showing, as of the Closing Date,
the current street address (including, where applicable, county, state
and other relevant jurisdictions) and record owner (or, if applicable,
lessee) thereof.
(c) No Loan Party nor any of its Subsidiaries owns or holds,
or is obligated under or a party to, any lease, option, right of first
refusal or other contractual right to purchase, acquire, sell, assign,
dispose of or lease any material Real Property of such Loan Party or
any of its Subsidiaries.
(d) Except as set forth on Schedule 4.20 (Real Property), no
portion of any material Real Property of any Loan Party or any of its
Subsidiaries set forth on Schedule 4.20 (Real Property) has suffered
any material damage by fire or other casualty loss that has not
heretofore been completely repaired and restored to its original
condition. No portion of any Real Property of any Loan Party or any of
its Subsidiaries is located in a special flood hazard area as
designated by any federal Governmental Authority.
(e) All Permits required to have been issued or appropriate to
enable all Real Property of the Company or any of its Subsidiaries to
be lawfully occupied and used for all of the purposes for which they
are currently occupied and used have been lawfully issued and are in
full force and effect, other than those that, in the aggregate, would
not have a Material Adverse Effect.
(f) None of the Company or any of its Subsidiaries has
received any written notice of any pending, threatened or contemplated
condemnation proceeding affecting any Real Property of the Company or
any of its Subsidiaries or any part thereof, except those that, in the
aggregate, would not have a Material Adverse Effect.
SECTION 4.21 RELATED DOCUMENTS
(a) The execution, delivery and performance by each Loan Party
of the Related Documents to which it is a party and the consummation of
the transactions contemplated thereby by such Loan Party:
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(i) are within such Loan Party's respective
corporate, limited liability company, partnership or other powers;
(ii) have been duly authorized by all necessary
corporate or other action, including the consent of stockholders where
required;
(iii) do not and will not (A) contravene or violate
any Loan Party's or any of its Subsidiaries' respective Constituent
Documents, (B) in any material respect, violate any other Requirement
of Law applicable to any Loan Party or any order or decree of any
Governmental Authority or arbitrator, (C) result in the breach of,
constitute a default under, or result in or permit the termination or
acceleration of, any Contractual Obligation of any Loan Party or any of
its Subsidiaries, except for those that, in the aggregate, would not
have a Material Adverse Effect or (D) result in the creation or
imposition of any Lien upon any property of any Loan Party or any of
its Subsidiaries other than as may be permitted under Section 8.2
(Liens, Etc.); and
(iv) do not require the consent of, authorization by,
approval of, notice to, or filing or registration with, any
Governmental Authority or any other Person, other than those that (A)
will have been obtained at the Closing Date, each of which will be in
full force and effect on the Closing Date, none of which will on the
Closing Date impose materially adverse conditions upon the exercise of
control by Holdings over the Company or by the Company over any of its
Subsidiaries and (B) in the aggregate, if not obtained, would not have
a Material Adverse Effect.
(b) Each of the Related Documents has been or at the Closing
Date will have been duly executed and delivered by each Loan Party
party thereto and at the Closing Date will be the legal, valid and
binding obligation of each Loan Party party thereto, enforceable
against such Loan Party in accordance with its terms, except that 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.
(c) None of the Related Documents has been amended or modified
in any respect and no provision therein has been waived, except in each
case to the extent permitted by Section 8.12 (Modification of Related
Documents), and, as of the Closing Date, each of the representations
and warranties therein are true and correct in all material respects
and no default or event that, with the giving of notice or lapse of
time or both, would be a default has occurred thereunder.
SECTION 4.22 AUSTRALIAN REPRESENTATIONS AND WARRANTIES
(a) Each Australian Subsidiary receives, directly or
indirectly, a corporate benefit from the Loan Documents and the
transactions contemplated thereby.
(b) Approval for the Acquisition has been obtained from the
Australian Foreign Investment Review Board under the Australian Foreign
Acquisitions and Takeovers Act and remains in full force and effect.
(c) Each Australian Subsidiary acts as trustee of each of the
trusts or settlements set forth on Schedule 4.22 (Australian Trusts and
Settlements) (considered together with
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SWIFT & COMPANY
any updates to such schedule sent to the Administrative Agent prior to
the date this representation and warranty is made), constitute all of
the trusts and settlements for which such Australian Subsidiary acts as
trustee as of the date hereof, and, in respect of each such trust and
settlement (i) such Australian Subsidiary holds the trust property in
trust under the deeds and documents related thereto, all of which are
set forth on such Schedule 4.22, and complies with all related trust
documents and all resolutions and directions relating to such trust,
(ii) no beneficiary is presently entitled to any of the assets subject
to such trust other than as set forth on such Schedule 4.22.
(d) No Person has contravened Section 208 of the Australian
Corporations Act by executing and delivering the Loan Documents and
Related Documents or participating in any transaction in connection
with any Loan Document or Related Document.
(e) None of the Lenders signatories hereto on the date hereof
are known or suspected by any Australian Subsidiary to be an Associate
of any Loan Party. Each Borrower agrees to immediately advise the
Administrative Agent it knows or suspects that any Lender is an
Associate of any Loan Party.
ARTICLE V
FINANCIAL COVENANTS
Each Borrower agrees with the Lenders, the Issuers and the
Agents to each of the following as long as any Obligation or any Commitment
remains outstanding and, in each case, unless the Requisite Lenders otherwise
consent in writing:
SECTION 5.1 MAXIMUM LEVERAGE RATIO
The Company shall maintain, on each day of each Fiscal Quarter
set forth below, a Leverage Ratio of not more than the maximum ratio set forth
below opposite such Fiscal Quarter:
FISCAL QUARTER ENDING
ON OR ABOUT MAXIMUM LEVERAGE RATIO
--------------------- ----------------------
November 30, 2002 4.20 to 1
February 28, 2003 4.20 to 1
May 31, 2003 4.20 to 1
August 31, 2003 4.20 to 1
November 30, 2003 4.00 to 1
February 28, 2004 4.00 to 1
May 31, 2004 4.00 to 1
August 31, 2004 4.00 to 1
November 30, 2004 3.75 to 1
February 28, 2005 3.75 to 1
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May 31, 2005 3.75 to 1
August 31, 2005 3.25 to 1
November 30, 2005 3.25 to 1
February 28, 2006 3.25 to 1
May 31, 2006 3.00 to 1
August 31, 2006 3.00 to 1
November 30, 2006 3.00 to 1
February 28, 2007 3.00 to 1
May 31, 2007 2.75 to 1
August 31, 2007 2.75 to 1
November 30, 2007 2.75 to 1
February 28, 2008 2.75 to 1
May 31, 2008 2.75 to 1
SECTION 5.2 MINIMUM INTEREST COVERAGE RATIO
The Company shall maintain an Interest Coverage Ratio, as
determined as of the last day of each Fiscal Quarter set forth below, for the
four Fiscal Quarters ending on such day, of at least the minimum ratio set forth
below opposite such Fiscal Quarter:
FISCAL QUARTER ENDING MINIMUM INTEREST COVERAGE
ON OR ABOUT RATIO
--------------------- -------------------------
November 30, 2002 2.50 to 1
February 28, 2003 2.50 to 1
May 31, 2003 2.50 to 1
August 31, 2003 2.50 to 1
November 30, 2003 2.50 to 1
February 28, 2004 2.50 to 1
May 31, 2004 2.50 to 1
August 31, 2004 2.50 to 1
November 30, 2004 2.50 to 1
February 28, 2005 2.50 to 1
May 31, 2005 2.75 to 1
August 31, 2005 2.75 to 1
November 30, 2005 2.75 to 1
February 28, 2006 2.75 to 1
May 31, 2006 3.25 to 1
August 31, 2006 3.25 to 1
November 30, 2006 3.25 to 1
February 28, 2007 3.25 to 1
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May 31, 2007 3.50 to 1
August 31, 2007 3.50 to 1
November 30, 2007 3.50 to 1
February 28, 2008 3.50 to 1
May 31, 2008 3.50 to 1
SECTION 5.3 MINIMUM FIXED CHARGE COVERAGE RATIO
The Company shall maintain a Fixed Charge Coverage Ratio, as
determined as of the last day of each Fiscal Quarter set forth below, for the
four Fiscal Quarters ending on such day, of at least the minimum ratio set forth
below opposite such Fiscal Quarter:
FISCAL QUARTER ENDING MINIMUM FIXED CHARGE
ON OR ABOUT COVERAGE RATIO
--------------------- --------------------
November 30, 2002 1.05 to 1
February 28, 2003 1.05 to 1
May 31, 2003 1.05 to 1
August 31, 2003 1.05 to 1
November 30, 2003 1.05 to 1
February 28, 2004 1.05 to 1
May 31, 2004 1.15 to 1
August 31, 2004 1.15 to 1
November 30, 2004 1.15 to 1
February 28, 2005 1.15 to 1
May 31, 2005 1.25 to 1
August 31, 2005 1.25 to 1
November 30, 2005 1.25 to 1
February 28, 2006 1.25 to 1
May 31, 2006 1.50 to 1
August 31, 2006 1.50 to 1
November 30, 2006 1.50 to 1
February 28, 2007 1.50 to 1
May 31, 2007 1.60 to 1
August 31, 2007 1.60 to 1
November 30, 2007 1.60 to 1
February 28, 2008 1.60 to 1
May 31, 2008 1.60 to 1
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ARTICLE VI
REPORTING COVENANTS
Each of Holdings and each Borrower agrees with the Lenders,
the Issuers and the Agents to each of the following, as long as any Obligation
or any Commitment remains outstanding and, in each case, unless the Requisite
Lenders otherwise consent in writing:
SECTION 6.1 FINANCIAL STATEMENTS
The Company shall furnish to the Administrative Agent (with
sufficient copies for each of the Lenders) each of the following:
(a) Monthly Reports. Within 30 days after the end of each
fiscal month in each Fiscal Year, financial information regarding the
Company and its Subsidiaries consisting of Consolidated and
consolidating unaudited balance sheets as of the close of such month
and the related statements of income and cash flow for such month and
that portion of the current Fiscal Year ending as of the close of such
month, setting forth in comparative form the figures for the
corresponding period in the prior year, in each case certified by a
Responsible Officer of the Company as fairly presenting the
Consolidated and consolidating financial position of the Company and
its Subsidiaries as at the dates indicated (and giving a true and fair
view of the financial position and performance of each of Australian
Holdings and each of its Subsidiaries as at such dates) and the results
of their operations and cash flow for the periods indicated in
accordance with GAAP (subject to the absence of footnote disclosure and
normal year-end audit adjustments).
(b) Quarterly Reports. Within 45 days after the end of each
Fiscal Quarter (other than any Fiscal Quarter for which, within 90 days
after the end thereof, Financial Statements are required to be provided
pursuant to clause (c) below), financial information regarding the
Company and its Subsidiaries consisting of Consolidated and
consolidating unaudited balance sheets as of the close of such quarter
and the related statements of income and cash flow for such quarter and
that portion of the Fiscal Year ending as of the close of such quarter,
setting forth in comparative form the figures for the corresponding
period in the prior year, in each case certified by a Responsible
Officer of the Company as fairly presenting the Consolidated and
consolidating financial position of the Company and its Subsidiaries as
at the dates indicated (and giving a true and fair view of the
financial position and performance of each of Australian Holdings and
each of its Subsidiaries as at such dates) and the results of their
operations and cash flow for the periods indicated in accordance with
GAAP (subject to the absence of footnote disclosure and normal year-end
audit adjustments).
(c) Annual Reports. Within 90 days after the end of each
Fiscal Year, financial information regarding the Company and its
Subsidiaries consisting of Consolidated and consolidating balance
sheets of the Company and its Subsidiaries as of the end of such year
and related statements of income and cash flows of the Company and its
Subsidiaries for such Fiscal Year, all prepared in conformity with GAAP
and certified, in the case of such Consolidated Financial Statements,
without qualification as to the scope of the audit or as to the Company
being a going concern by the Company's Accountants, together with the
report of such accounting firm stating that (i) such Financial
Statements fairly present the Consolidated financial position of the
Company and its Subsidiaries as
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at the dates indicated (and give a true and fair view of the financial
position and performance of each of Australian Holdings and each of its
Subsidiaries as at such dates) and the results of their operations and
cash flow for the periods indicated in conformity with GAAP applied on
a basis consistent with prior years (except for changes with which the
Company's Accountants shall concur and that shall have been disclosed
in the notes to the Financial Statements) and (ii) the examination by
the Company's Accountants in connection with such Consolidated
Financial Statements has been made in accordance with generally
accepted auditing standards, and accompanied by a certificate stating
that in the course of the regular audit of the business of the Company
and its Subsidiaries such accounting firm has obtained no knowledge
that a Default or Event of Default in respect of the financial
covenants contained in Article V (Financial Covenants) has occurred and
is continuing, or, if in the opinion of such accounting firm, a Default
or Event of Default has occurred and is continuing in respect of such
financial covenants, a statement as to the nature thereof.
(d) Compliance Certificate. Together with each delivery of any
financial statement pursuant to clause (b) or (c) above, a certificate
of a Responsible Officer of the Company (each, a "Compliance
Certificate") (i) showing in reasonable detail the calculations used in
determining the Leverage Ratio (for purposes of determining the
Applicable Margin) and demonstrating compliance with each of the
financial covenants contained in Article V (Financial Covenants) that
is tested on a quarterly basis and (ii) stating that no Default or
Event of Default has occurred and is continuing or, if a Default or an
Event of Default has occurred and is continuing, stating the nature
thereof and the action that the Company or any of its Subsidiaries
proposes to take with respect thereto.
(e) Corporate Chart and Other Collateral Updates. On or before
each date on or before which Financial Statements are required to be
delivered pursuant to clause (c) above, (i) a certificate of a
Responsible Officer of the Company certifying that the Corporate Chart
attached thereto (or the last Corporate Chart delivered pursuant to
this clause (e)), is true, correct, complete and current as of the date
of receipt of such certificate by the Administrative Agent and, if
later, such date for the delivery of Financial Statements and (ii) a
certificate of a Responsible Officer of each Borrower in form and
substance satisfactory to the Administrative Agent that, to the best of
the knowledge of such Borrower, all certificates, statements, updates
and other documents (including updated schedules) required to be
delivered pursuant to the Pledge and Security Agreement by any Loan
Party in the preceding Fiscal Year have been delivered thereunder. The
reporting requirements set forth in this clause (e) are in addition to,
and are not intended to and shall not replace, relax or otherwise
modify, any obligation of any Loan Party under any Loan Document
(including other notice or reporting requirements). Compliance with the
reporting obligations in this clause (e) shall not, by itself, operate
to update any Schedule hereto or any schedule to any other Loan
Document and shall not cure, or otherwise modify in any way, any
failure to comply with any covenant, or any breach of any
representation or warranty, contained in any Loan Document or any other
Default or Event of Default.
(f) Business Plan. Not later than 15 days prior to the end of
each Fiscal Year other than the Fiscal Year ending in calendar year
2002, and containing substantially the types of financial information
contained in the Projections, the annual business plan of
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the Company and its Subsidiaries for the next succeeding Fiscal Year
determined in accordance with the Company's normal business cycle and
approved by the Board of Directors of the Company or a duly appointed
committee thereof.
(g) Management Letters, Etc. Within 10 Business Days after
receipt thereof by any Loan Party, copies of each management letter,
exception report or similar letter or report received by such Loan
Party from its independent certified public accountants (including the
Company's Accountants).
(h) Intercompany Loan Balances. Together with each delivery of
any financial statement pursuant to clause (a) above, a summary of the
outstanding balance of all intercompany Indebtedness (including
pursuant to the Australian Intercompany Credit Agreement) as of the
last day of the fiscal month covered by such financial statement,
certified by a Responsible Officer of the Company.
SECTION 6.2 DEFAULT NOTICES
As soon as practicable, and in any event within 7 Business
Days after a Responsible Officer of any Loan Party has actual knowledge of the
existence of any Default, Event of Default or other event having had a Material
Adverse Effect or that could reasonably be expected to cause a Material Adverse
Change, the Company shall give the Administrative Agent notice specifying the
nature of such Default or Event of Default or other event, including the
anticipated effect thereof, which notice, if given by telephone, shall be
promptly confirmed in writing on the next Business Day.
SECTION 6.3 LITIGATION
Promptly after the commencement thereof, the Company shall
give the Administrative Agent written notice of the commencement of all actions,
suits and proceedings before any domestic or foreign Governmental Authority or
arbitrator affecting the Company or any of its Subsidiaries or Permitted Joint
Venture that (i) seeks injunctive or similar relief and that would have a
Material Adverse Effect or (ii) in the reasonable judgment of the Company, such
Subsidiary or such Permitted Joint Venture, exposes the Company, such Subsidiary
or such Permitted Joint Venture to liability in an amount the Dollar Equivalent
of which aggregates $5,000,000 or more or that would have a Material Adverse
Effect.
SECTION 6.4 ASSET SALES
Prior to any Asset Sale whose Net Cash Proceeds are
anticipated to have a Dollar Equivalent in excess of $10,000,000, the Company
shall send the Administrative Agent a notice (a) describing such Asset Sale or
the nature and material terms and conditions of such transaction and (b) stating
the estimated Net Cash Proceeds anticipated to be received by Holdings or any of
its Subsidiaries.
SECTION 6.5 NOTICES UNDER RELATED DOCUMENTS
Promptly after the sending or filing thereof, the Company
shall send the Administrative Agent copies of all material notices, certificates
or reports delivered pursuant to, or in connection with, any Related Document.
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SECTION 6.6 SEC FILINGS; PRESS RELEASES
Promptly after the sending or filing thereof, the Company
shall send the Administrative Agent copies of (a) all reports that Holdings or
any of its Subsidiaries sends to its security holders generally, (b) all reports
and registration statements that Holdings or any of its Subsidiaries files with
the Securities and Exchange Commission or any national or foreign securities
exchange (including the Australian Securities and Investment Commission) or the
National Association of Securities Dealers, Inc., (c) all press releases and (d)
all other statements concerning material changes or developments in the business
of Holdings or any of its Subsidiaries or any Permitted Joint Venture of any of
them made available by Holdings or any of its Subsidiaries (or, to the extent
Holdings or any of its Subsidiaries has knowledge thereof, any Permitted Joint
Venture of any of them) to the public or any other creditor.
SECTION 6.7 LABOR RELATIONS
Promptly after any Borrower becoming aware of the same, the
Company shall give the Administrative Agent written notice of (a) any material
labor dispute to which the Company or any of its Subsidiaries is or may become a
party, including any strikes, lockouts or other disputes relating to any of such
Person's plants and other facilities, and (b) any Worker Adjustment and
Retraining Notification Act or related liability incurred with respect to the
closing of any plant or other facility of any such Person.
SECTION 6.8 TAX RETURNS
Upon the request of any Lender, through the Administrative
Agent, the Company shall provide to the Administrative Agent a copy of all
federal, state, local and foreign tax returns and reports filed by the Company
or any of its Subsidiaries in respect of taxes measured by income (excluding
sales, use and like taxes).
SECTION 6.9 INSURANCE
As soon as is practicable and in any event within 90 days
after the end of each Fiscal Year, the Company shall furnish the Administrative
Agent with (a) a report in form and substance satisfactory to the Administrative
Agent and the Lenders outlining all material insurance coverage maintained as of
the date of such report by the Company and its Subsidiaries and the duration of
such coverage and (b) unless otherwise agreed by the Administrative Agent,
certificates of insurance confirming that the Administrative Agent has been
named as loss payee or additional insured, as applicable.
SECTION 6.10 ERISA MATTERS
The Company shall furnish the Administrative Agent (with
sufficient copies for each of the Lenders) each of the following:
(a) promptly and in any event within 30 days after the
Company, any of its Subsidiaries or any ERISA Affiliate knows or has
reason to know that any ERISA Event has occurred, written notice
describing such event;
(b) promptly and in any event within 10 days after Holdings,
any of its Subsidiaries or any ERISA Affiliate knows or has reason to
know that a request for a
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minimum funding waiver under Section 412 of the Code has been filed
with respect to any Title IV Plan or Multiemployer Plan, a written
statement of a Responsible Officer of the Company describing such
waiver request and the action, if any, the Company, its Subsidiaries
and ERISA Affiliates propose to take with respect thereto and a copy of
any notice filed with the PBGC or the IRS pertaining thereto;
(c) simultaneously with the date that Holdings, any of its
Subsidiaries or any ERISA Affiliate takes, or approves the decision to
take, any action to establish any Title IV Plan or contribute to any
Multiemployer Plan other than such Plans listed on Schedule 4.17 (List
of Plans); and
(d) simultaneously with the date that Holdings, the Company,
any of the Company's Subsidiaries takes or approves the decision to
take any action (including any steps to terminate any Compensation
Plan) or any omission (including any failure to make any required
contributions to any Compensation Plan), with respect to any
Compensation Plan, in either case that could reasonably be expected to
(i) result in a liabilities for Holdings, the Company or any of the
Company's Subsidiaries the Dollar Equivalent of which shall be in
excess of $7,000,000 in the aggregate, (ii) give rise to a Lien over
any of the properties, assets or revenues of Holdings, the Company or
any of the Company's Subsidiaries or (iii) result in a Material Adverse
Effect, a notice of the foregoing action or omission.
SECTION 6.11 ENVIRONMENTAL MATTERS
The Company shall provide the Administrative Agent promptly
and in any event within 10 days after the Company or any of its Subsidiaries
learning of any of the following, written notice of each of the following:
(a) that any Loan Party is or may be liable to any Person as a
result of a Release or threatened Release that could reasonably be
expected to subject such Loan Party to Environmental Liabilities and
Costs the Dollar Equivalent of which shall equal or exceed $10,000,000;
(b) the receipt by any Loan Party of notification that any
real or personal property of such Loan Party is or is reasonably likely
to be subject to any Environmental Lien;
(c) the receipt by any Loan Party of any notice of violation
of or potential liability under, or knowledge by such Loan Party that
there exists a condition that could reasonably be expected to result in
a violation of or liability under, any Environmental Law, except for
such violations and liabilities the consequence of which, in the
aggregate, would not be reasonably likely to subject the Loan Parties
collectively to Environmental Liabilities and Costs the Dollar
Equivalent of which shall equal or exceed $10,000,000;
(d) the commencement of any judicial or administrative
proceeding or investigation alleging a violation of or liability under
any Environmental Law, that, in the aggregate, if adversely determined,
would have a reasonable likelihood of subjecting the Loan Parties
collectively to Environmental Liabilities and Costs the Dollar
Equivalent of which shall equal or exceed $10,000,000;
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(e) any proposed acquisition of stock, assets or real estate,
any proposed leasing of property or any other action by any Loan Party
or any of its Subsidiaries other than those the consequences of which,
in the aggregate, have reasonable likelihood of subjecting the Loan
Parties collectively to Environmental Liabilities and Costs the Dollar
Equivalent of which shall equal or exceed $10,000,000;
(f) any proposed action by any Loan Party or any of its
Subsidiaries or any proposed change in Environmental Laws that, in the
aggregate, have a reasonable likelihood of requiring the Loan Parties
to obtain additional environmental, health or safety Permits or make
additional capital improvements to obtain compliance with Environmental
Laws whose cost, in the aggregate, shall have a Dollar Equivalent
equaling or exceeding $10,000,000 or which shall subject the Loan
Parties to additional Environmental Liabilities and Costs the Dollar
Equivalent of which shall equal or exceed $10,000,000; and
(g) upon written request by any Lender through the
Administrative Agent, a report providing an update of the status of any
environmental, health or safety compliance, hazard or liability issue
identified in any notice or report delivered pursuant to this
Agreement.
SECTION 6.12 BORROWING BASES DETERMINATION
(a) The Borrowers shall jointly deliver, as soon as available
and in any event not later than the fourth Business Day after each
Sunday in each calendar week, a Borrowing Base Certificate as of such
Sunday executed by a Responsible Officer of such Borrower.
(b) Each Borrower shall conduct, or shall cause to be
conducted, at its expense and upon request of the Administrative Agent,
and present to the Administrative Agent for approval, such appraisals,
investigations and reviews as the Administrative Agent shall request
for the purpose of determining the Borrowing Base of such Borrower all
upon notice and at such times during normal business hours and as often
as may be reasonably requested (those of such appraisals that are in
form and substance to the Administrative Agent and performed by an
appraiser that is satisfactory to the Administrative Agent, the
"Updated Appraisals"); provided, however, that, (i) as long as no Event
of Default shall have occurred and be continuing, the Borrowers shall
be required to conduct or cause to be conducted appraisals no more than
once in each calendar year and other investigation and reviews no more
than once in any three-month period and (ii) during the occurrence and
continuance of any Event of Default, the Borrowers shall conduct or
cause to be conducted appraisals, investigations and reviews in each
such calendar year or, as the case may be, three month period, the
number of which, if greater than one, shall be reasonable. The
Administrative Agent is hereby authorized to obtain any Updated
Appraisal directly from any third-party appraiser acceptable to it at
the Company's expense subject to the proviso in the preceding sentence.
The Administrative Agent shall provide to the Syndication Agent (and,
upon request by any Lender, to such Lender) a copy of each such
appraisal, investigation and review received from any Borrower. Each
Borrower shall furnish to the Administrative Agent and the Syndication
Agent (and, upon request by any Lender, to such Lender) any information
that the Administrative Agent or, as the case may be, the Syndication
Agent may reasonably request regarding the determination and
calculation of the Borrowing Bases including correct and complete
copies of any invoices, underlying agreements,
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instruments or other documents and the identity of all Account Debtors
in respect of Accounts referred to therein.
(c) Each Borrower shall promptly notify the Administrative
Agent and the Syndication Agent in writing in the event that at any
time such Borrower receives or otherwise gains knowledge that (i) the
Borrowing Base of such Borrower is less than 90% of the Borrowing Base
of such Borrower reflected in the most recent Borrowing Base
Certificate delivered pursuant to clause (a) above (which, for purposes
of this calculation, shall not, in the case of the Australian
Borrowers, include the Borrowing Base of the Company), (ii) the
Aggregate Borrowing Base is less than 90% of the Aggregate Borrowing
Base reflected in the most recent Borrowing Base Certificate delivered
pursuant to clause (a) above, (iii) the sum of (A) the aggregate
Revolving Credit Outstandings of the Borrowers and (B) the outstanding
principal amount of Term Loans at such time exceeds the Aggregate
Maximum Credit as a result of a decrease in the Aggregate Borrowing
Base or (iv) the Revolving Credit Outstandings of such Borrower exceeds
the Maximum Available Borrowing Base of such Borrower at such time as a
result of a decrease in the Borrowing Base of such Borrower; provided,
however, that, in case of clauses (iii) and (iv) above, such notice
shall also include the amount of such excess.
(d) The Administrative Agent may, at such Borrowers' sole cost
and expense, make test verifications of the Accounts of any Borrower
and physical verifications of the Inventory of any Borrower in any
manner and through any medium that the Administrative Agent considers
advisable, and each Borrower shall furnish all such assistance and
information as the Administrative Agent may require in connection
therewith. The Syndication Agent may, also at such Borrowers' sole cost
and expense, join the Administrative Agent in making such
verifications, at such times and in the manner determined by the
Administrative Agent.
SECTION 6.13 CUSTOMER CONTRACTS
Promptly after any Borrower becoming aware of the same, the
Company shall give the Administrative Agent written notice of any cancellation,
termination or loss of any material Contractual Obligation or other customer
arrangement.
SECTION 6.14 OTHER INFORMATION
Each Borrower shall provide the Administrative Agent or any
Lender with such other information respecting the business, properties,
condition, financial or otherwise, or operations of Holdings, the Company, any
of Subsidiary of the Company or any Permitted Joint Venture as the
Administrative Agent or such Lender through the Administrative Agent may from
time to time reasonably request.
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ARTICLE VII
AFFIRMATIVE COVENANTS
Each of Holdings and each Borrower agrees with the Lenders,
the Issuers, the Administrative Agent, the Australian Agent and the Australian
Collateral Trustee to each of the following, as long as any Obligation or any
Commitment remains outstanding and, in each case, unless the Requisite Lenders
otherwise consent in writing:
SECTION 7.1 PRESERVATION OF CORPORATE EXISTENCE, ETC.
Each of Holdings and each Borrower shall, and each Borrower
shall cause each of its Subsidiaries to, preserve and maintain its legal
existence, rights (charter and statutory) and franchises, except as permitted by
Sections 8.3 (Investments), 8.4 (Sale of Assets) and 8.7 (Restriction on
Fundamental Changes; Permitted Acquisitions).
SECTION 7.2 COMPLIANCE WITH LAWS, ETC.
Each of Holdings and each Borrower shall, and each Borrower
shall cause each of its Subsidiaries to, comply with all applicable Requirements
of Law, Contractual Obligations and Permits, except where the failure so to
comply would not, in the aggregate, have a Material Adverse Effect.
SECTION 7.3 CONDUCT OF BUSINESS
Each Borrower shall, and shall cause each of its Subsidiaries
to, (a) conduct its business in the ordinary course consistent with past
practice and (b) use its reasonable efforts, in the ordinary course and
consistent with past practice, to preserve its business and the goodwill and
business of the customers, advertisers, suppliers and others having business
relations with the Company or any of its Subsidiaries, except in each case where
the failure to comply with the covenants in each of clauses (a) and (b) above
would not, in the aggregate, have a Material Adverse Effect.
SECTION 7.4 PAYMENT OF TAXES, ETC.
Each of Holdings and each Borrower shall, and each Borrower
shall cause each of its Subsidiaries to, pay and discharge before the same shall
become delinquent, all lawful governmental claims, taxes, assessments, charges
and levies, except where contested in good faith, by proper proceedings and
adequate reserves therefor have been established on the books of Holdings, such
Borrower or the appropriate Subsidiary in conformity with GAAP (or, in the case
of the Australian Subsidiaries, if applicable, Australian GAAP).
SECTION 7.5 MAINTENANCE OF INSURANCE
Each Borrower shall (a) maintain for itself, and cause to be
maintained for each of its Subsidiaries, insurance with responsible and
reputable insurance companies or associations in such amounts and covering such
risks as is usually carried by companies engaged in similar businesses and
owning similar properties in the same general areas in which such Borrower or
such Subsidiary operates, and such other insurance as may be reasonably
requested by the Requisite Lenders, and, in any event, all insurance required by
any Collateral Document,
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(b) cause all in-transit Inventory to be adequately insured and (c) unless
otherwise agreed by the Administrative Agent, cause all such insurance to name
the Administrative Agent on behalf of the Secured Parties or, for Collateral
located in Australia, the Australian Collateral Trustee as additional insured or
loss payee, as appropriate, and to provide that no cancellation, material change
in amount or material change in coverage shall be effective until after 30 days'
written notice thereof to the Administrative Agent.
SECTION 7.6 ACCESS
Each of Holdings and each Borrower shall, and each Borrower
shall cause each of its Subsidiaries to, from time to time permit the
Administrative Agent, the Australian Agent and the Lenders, or any agents or
representatives thereof, within two Business Days after written notification of
the same (except that during the continuance of an Event of Default, no such
notice shall be required) to (a) examine and make copies of and abstracts from
the records and books of account of the Company and each of its Subsidiaries,
(b) visit the properties of the Company and each of its Subsidiaries, (c)
discuss the affairs, finances and accounts of the Company and each of its
Subsidiaries with any of their respective officers or directors and (d)
communicate directly with any of its certified public accountants (including the
Company's Accountants). Each Borrower shall authorize its and its Subsidiaries'
certified public accountants (including the Company's Accountants) to disclose
to the Administrative Agent, the Australian Agent or any Lender any and all
financial statements and other information of any kind, as the Administrative
Agent, the Australian Agent or any Lender reasonably requests and that such
accountants may have with respect to the business, financial condition, results
of operations or other affairs of the Company or any of its Subsidiaries.
SECTION 7.7 KEEPING OF BOOKS
Each of Holdings and each Borrower shall, and each Borrower
shall cause each of its Subsidiaries to keep, proper books of record and
account, in which full and correct entries shall be made in conformity with GAAP
(and, in the case of the Australian Subsidiaries, if applicable, Australian
GAAP) of all financial transactions and the assets and business of Holdings,
each such Borrower and each such Subsidiary.
SECTION 7.8 MAINTENANCE OF PROPERTIES, ETC.
Each of Holdings and each Borrower shall, and each Borrower
shall cause each of its Subsidiaries to, maintain and preserve (a) in good
working order and condition all of its properties necessary in the conduct of
its business, (b) all rights, permits, licenses, approvals and privileges
(including all Permits) used or useful or necessary in the conduct of its
business and (c) all registered patents, trademarks, trade names, copyrights and
service marks with respect to its business, except where failure to so maintain
and preserve the items set forth in clauses (a), (b) and (c) above would not, in
the aggregate, have a Material Adverse Effect and, with respect to clause (c)
above, except where such Person reasonably determines that such intellectual
property is no longer useful in its business.
SECTION 7.9 USE OF PROCEEDS; RANKING
Each of Holdings and each Borrower shall, and each Borrower
shall cause each of its Subsidiaries to, (a) use the entire amount of the
proceeds of the Loans as provided in Section 4.13 (Use of Proceeds) and (b)
ensure that the payment obligations of the Borrower under
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this Agreement and the Notes will at all times have a ranking not less than that
specified in Section 4.14 (Ranking) and that the Secured Obligations at all
times constitute "Senior Debt" as defined in the Subordinated Notes Indenture
and under any term of similar application defined in any Permitted Unsecured
Debt Document with respect to any Additional Unsecured Indebtedness that is
junior to the Senior Notes. No Loan Party shall designate any Indebtedness
(other than the Secured Obligations and obligations under the Replacement Credit
Lines) as "Designated Senior Debt" under the Subordinated Notes Indenture.
SECTION 7.10 ENVIRONMENTAL
Each of Holdings and each Borrower shall, and each Borrower
shall cause all of its Subsidiaries to, comply in all material respects with
Environmental Laws and, without limiting the foregoing, each Borrower shall, at
the Borrowers' sole cost and expense (for which they shall be jointly and
severally liable), upon receipt of any notification or otherwise obtaining
knowledge of any Release or other event that has any reasonable likelihood of
Holdings, the Company and its Subsidiaries incurring Environmental Liabilities
and Costs the Dollar Equivalent of which shall exceed $2,000,000 in the
aggregate, (a) conduct or pay for consultants to conduct, tests or assessments
of environmental conditions at such operations or properties, including the
investigation and testing of subsurface conditions as is appropriate and
consistent with good business practice or is required by or necessary to achieve
compliance with any Environmental Law and (b) take such Remedial Action and
undertake such investigation or other action as required by Environmental Laws
or as any Governmental Authority requires or as is appropriate and consistent
with good business practice to address the Release or event and otherwise ensure
compliance with Environmental Laws. Nothing in this Section 7.10 shall prevent
any Borrower from challenging any order or directive of any Governmental
Authority or other Person, or otherwise exercising its rights and privileges
pursuant to any Environmental Law.
SECTION 7.11 ADDITIONAL COLLATERAL AND GUARANTIES
To the extent not delivered to the Administrative Agent on or
before the Closing Date (including in respect of after-acquired property and
Persons having become Subsidiaries after the Closing Date), Holdings and each
Borrower agrees promptly (and, for newly-created Subsidiaries, in any event
within 10 Business Days after the creation of such Subsidiaries) to do each of
the following:
(a) execute and deliver, and cause their respective
Subsidiaries to execute and deliver, to the Administrative Agent such
supplements, amendments and joinders to the Collateral Documents (or,
in the case of any such Subsidiary of the Borrower that is not a
Domestic Subsidiary or holding shares in any Person that is not a
Domestic Subsidiary, foreign charges, pledges and security agreements),
in each case in form and substance reasonably satisfactory to the
Administrative Agent and as the Administrative Agent deems necessary or
advisable in order to grant to the Administrative Agent or, for assets
located in Australia, the Australian Collateral Trustee, for the
benefit of the Secured Parties, a perfected first priority security
interest in the Stock and Stock Equivalents and other debt Securities
owned by any Loan Party or Subsidiary thereof that are requested to be
pledged by the Administrative Agent; provided, however, that, unless
the Company and the Administrative Agent otherwise agree or such pledge
shall not have any material adverse tax consequences for the Company
and its Subsidiaries, in no event shall any Loan Party or any
Subsidiary thereof be required to pledge, in order to secure the
Secured Obligations of the Company or any Subsidiary thereof that is a
Domestic Person (other
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than the Guaranty Obligations thereof in respect of the Secured
Obligations of any Subsidiary of the Company that is a Non-U.S.
Person), (i) in excess of 65% of the outstanding Voting Stock of any
Non-U.S. Person that is a direct Subsidiary of the Company or of any
Subsidiary of the Company that is a Domestic Person or (ii) unless such
Stock is otherwise held by the Company or any Subsidiary of the Company
that is a Domestic Person, any of the Stock of any Subsidiary of such
direct Subsidiary;
(b) cause their respective Subsidiaries to execute and
deliver, to the Administrative Agent (i) such guaranties or
supplements, amendments and joinders to the Domestic Guaranty, in the
case of Domestic Subsidiaries, and (ii) otherwise to the Non-U.S.
Guaranty, and such supplements, amendments and joinders to the
Collateral Documents, in each case in form and substance reasonably
satisfactory to the Administrative Agent and as the Administrative
Agent deems necessary or advisable in order to ensure that (x) all
Subsidiaries of the Company (other than Permitted Joint Ventures)
guaranty, as primary obligor and not as surety, the full and punctual
payment when due of the Obligations and (y) each such guaranty is
secured by a valid, perfected and enforceable first-priority security
interest granted to the Administrative Agent or, for assets located in
Australia, the Australian Collateral Trustee, for the benefit of the
Secured Parties over all of the assets (other than such assets as the
Administrative Agent, in its sole discretion exercised reasonably,
deems immaterial) of such Subsidiary (including the Collateral
described in the Collateral Documents); provided, however, that, (A)
unless the Company and the Administrative Agent otherwise agree or such
guaranty shall not have any material tax consequences for the Company
and its Subsidiaries, in no event shall any Non-U.S. Person be required
to guaranty the payment of the Obligations owing by the Company or any
Subsidiary thereof that is a Domestic Person (other than the Guaranty
Obligations thereof in respect of the Secured Obligations of any
Subsidiary of the Company that is a Non-U.S. Person), (B) unless the
Borrower and the Administrative Agent otherwise agree or such pledge
shall not have any material tax consequences for the Company and its
Subsidiaries, in no event shall any Subsidiary of any Loan Party that
is not a Domestic Person be required to grant a security interest on
any of its assets to secure the Secured Obligations of the Company or
any Subsidiary thereof that is a Domestic Person (other than the
Guaranty Obligations thereof in respect of the Secured Obligations of
any Subsidiary of the Company that is a Non-U.S. Person) and (iii) no
Australian Borrower shall be required to guaranty its own Obligations;
(c) deliver to the Administrative Agent (or, for Australian
Holdings and any of its Subsidiaries, the Australian Collateral
Trustee) the certificates (if any) representing such Stock and Stock
Equivalents and other debt Securities, together with (i) in the case of
such certificated Stock and Stock Equivalents, undated stock powers
endorsed in blank and (ii) in the case of such certificated debt
Securities, endorsed in blank, in each case executed and delivered by a
Responsible Officer of such Loan Party or such Subsidiary thereof, as
the case may be;
(d) in the case of any Wholly-Owned Subsidiary of any Loan
Party that is a Domestic Subsidiary, cause such Wholly-Owned Subsidiary
(i) to execute a supplement, amendment or joinder or otherwise become a
party to the Domestic Guaranty and the applicable Collateral Documents
and (ii) to take such actions necessary or advisable to grant to the
Administrative Agent (or, for Collateral located in Australia, the
Australian Collateral Trustee) for the benefit of the Secured Parties a
perfected security interest in
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the Collateral described in the Collateral Documents with respect to
such Wholly-Owned Subsidiary, including the filing of UCC financing
statements in such jurisdictions as may be required by the Collateral
Documents or by law or as may be reasonably requested by the
Administrative Agent;
(e) in respect of each Subsidiary of Holdings or other Person
entering into Guaranty Obligations of the Indebtedness of any Loan
Party under any Permitted Unsecured Indebtedness or other Indebtedness
permitted hereunder, 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 Stock
Equivalents of such Person;
(f) within 30 days of the acquisition of any aircraft by any
Loan Party, deliver to the Administrative Agent (or, if consented to by
the Administrative Agent, the Australian Collateral Trustee) Aircraft
Security Documents in form and substance satisfactory to the
Administrative Agent for such aircraft; and
(g) if requested by the Administrative Agent, deliver to the
Administrative Agent legal opinions relating to the matters described
above, which opinions shall be in form and substance, and from counsel,
reasonably satisfactory to the Administrative Agent.
SECTION 7.12 LANDLORD WAIVERS AND BAILEE'S LETTERS
Each Borrower shall, and shall cause each of its Borrowing
Base Contributors to, use its commercially reasonable efforts to deliver
Landlord Waivers and Bailee's Letters to the extent requested by the
Administrative Agent.
SECTION 7.13 CONTROL ACCOUNTS; APPROVED DEPOSIT ACCOUNTS
(a) (i) Within 60 days after the Closing Date, procedures
satisfactory to the Administrative Agent with respect to cash
management required hereby and by the Collateral Documents shall have
been established by each Loan Party and the Administrative Agent shall
have received evidence satisfactory to it of such procedures, together
with, unless otherwise agreed by the Administrative Agent, copies of
all executed lockbox agreements, Deposit Account Control Agreements and
Australian Cash Management Documents executed by such Loan Party in
connection therewith and (ii) thereafter, each Loan Party shall
maintain such procedures (with appropriate modifications thereto
(subject to the provisions hereof) satisfactory to the Administrative
Agent).
(b) On and at any time after the 60th day after the Closing
Date, Holdings and each Borrower shall, and shall cause each of its
Subsidiaries that is one of its Borrowing Base Contributors to, (i)
deposit in an Approved Deposit Account all cash received, (ii) cause
all funds in Approved Deposit Accounts of, in the case of either
Australian
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Borrower, Australian Holdings and any Subsidiary thereof and, in the
case of the Company, the other Subsidiary Guarantors to be transferred
daily to such Borrower's Cash Collateral Account (provided, however,
that, the Administrative Agent may agree with any Borrower on
procedures designed to manage the exposure of any Loan Party to foreign
exchange fluctuations pursuant to which funds in Approved Deposit
Accounts may be transferred from time to time to designated Lenders or
Agents), (iii) not establish or maintain any Securities Account or
Commodities Account that is not a Control Account and (iv) not
establish or maintain any Deposit Account other than with a Deposit
Account Bank, a Lender or an Affiliate of a Lender; provided, however,
that the Loan Parties may (x) maintain payroll, withholding tax and
other fiduciary accounts and (y) maintain other Deposit Accounts as
long as the Dollar Equivalent of the aggregate balance in all such
other Deposit Accounts does not exceed $10,000,000.
(c) On and at any time after the 60th day after the Closing
Date, Holdings and each Borrower shall, and shall cause each of its
Subsidiaries that are its Borrowing Base Contributors to, instruct each
Account Debtor or other Person obligated to make a payment to such Loan
Party under an Account or General Intangible to make payment, or to
continue to make payment, as the case may be, to an Approved Deposit
Account and shall deposit in an Approved Deposit Account all Proceeds
of such Accounts and General Intangibles received by such Grantor from
any other Person immediately upon receipt; provided, however, that,
Account Debtors may make payments in Australia to Deposit Accounts that
are not Approved Deposit Accounts in an amount not to exceed in the
aggregate for each calendar week $750,000.
(d) In the event (i) any Loan Party or any Approved Securities
Intermediary or Deposit Account Bank shall, after the 60th day after
the Closing Date, terminate an agreement with respect to the
maintenance of a Control Account or Approved Deposit Account for any
reason, (ii) the Administrative Agent shall demand such termination as
a result of the failure of an Approved Securities Intermediary or
Deposit Account Bank to comply with the terms of the applicable Control
Account Agreement or Deposit Account Control Agreement or (iii) the
Administrative Agent determines in its sole discretion that the
financial condition of an Approved Securities Intermediary or Deposit
Account Bank, as the case may be, has materially deteriorated, Holdings
and each Borrower agree to notify all of obligors of any Loan Party
that were making payments to such terminated Control Account or
Approved Deposit Account, as the case may be, to make all future
payments to another Control Account or Approved Deposit Account, as the
case may be.
(e) Funds on deposit in any Cash Collateral Account may be
invested in Cash Equivalents at the direction of the Administrative
Agent or the Australian Agent and each of the Administrative Agent and
the Australian Agent agrees that, other than during the continuance of
any Default or Event of Default, it shall issue directions,
certificates and orders (including entitlement orders) as may be
requested by the Company for such investments in Cash Equivalents;
provided, however, that neither the Administrative Agent nor the
Australian Agent shall have any responsibility for, or bear any risk of
loss of, any such investment or income thereon. No Borrower or any
other Loan Party or Person claiming on behalf of or through any of them
shall have any right to demand payment of any funds held in any Cash
Collateral Account of such Borrower or delivery of any Cash Equivalents
held therein at any time prior to the termination of all
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outstanding Letter of Credit Obligations of such Borrower and the
payment in full of all Obligations of such Borrower then outstanding
and payable.
(f) Each of the Administrative Agent and the Australian Agent
shall apply all funds on deposit in a Cash Collateral Account as
provided in Section 2.9(e) (Mandatory Prepayments) (i) for each such
Cash Collateral Account of Australian Holdings or any of its
Subsidiaries not later than 1:00 p.m. (Sydney Time) to pay the Secured
Obligations owing by Australian Holdings or any of its Subsidiaries
and, to the extent any funds shall be left over after such payment, to
repay the obligations under the Australian Intercompany Credit
Agreement (and each Loan Party agrees that such repayment of the
obligations under the Australian Intercompany Credit Agreement may then
be applied to repay all other Secured Obligations hereunder) and (ii)
for each other Cash Collateral Account, not later than 1:00 p.m. (New
York time), to repay all other Secured Obligations hereunder.
SECTION 7.14 REAL PROPERTY
(a) Each Borrower shall, and shall cause each of its
Subsidiaries to, (i) comply in all material respects with all of their
respective obligations under all of their respective material Leases
now or hereafter held respectively by them, including the Leases set
forth in Schedule 4.20 (Real Property), (ii) not modify, amend, cancel,
extend or otherwise change in any manner materially adverse to the
Borrower, its Subsidiaries, the Administrative Agent, the Australian
Agent, the Australian Collateral Trustee or the Secured Parties, any
term, covenant or condition of any such Lease, (iii) not assign or
sublet any other Lease if such assignment or sublet would have a
Material Adverse Effect, (iv) provide the Administrative Agent with a
copy of each notice of default under any Lease received by any Borrower
or any Subsidiary of any Borrower immediately upon receipt thereof and
deliver to the Administrative Agent a copy of each notice of default
sent by any Borrower or any Subsidiary of any Borrower under any
material Lease simultaneously with its delivery of such notice under
such Lease and (v) notify the Administrative Agent at least 14 days
prior to the date any Borrower or any Subsidiary of any Borrower takes
possession of, or becomes liable under, any new material leased
premises or material Lease, whichever is earlier.
(b) At least 15 Business Days prior to (i) entering into any
Lease (other than a renewal of an existing Lease) for the principal
place of business and chief executive office of any Borrower or any
other Guarantor or any other Lease (including any renewal) in which the
Dollar Equivalent of the annual rental payments are anticipated to
equal or exceed $2,000,000 or (ii) acquiring any material owned Real
Property, each Borrower shall, and shall cause each Subsidiary
Guarantor to, provide the Administrative Agent written notice thereof
and, upon written request of the Administrative Agent, each Borrower
shall, and shall cause each Subsidiary Guarantor to, provide Phase I
environmental reports on such Real Property or, as the case may be, the
Real Property subject to such Lease showing no condition that could
give rise to material Environmental Costs and Liabilities.
(c) To the extent not previously delivered to the
Administrative Agent, upon written request of the Administrative Agent,
each Borrower shall, and shall cause each Subsidiary Guarantor to,
execute and deliver to the Administrative Agent, for the benefit of the
Secured Parties, promptly and in any event not later than 45 days after
receipt of
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such notice (or, if such notice is given by the Administrative Agent at
least 45 days prior to the acquisition of such Real Property or Lease,
immediately upon such acquisition), a U.S. Mortgage on any material
Real Property or material Lease of such Borrower or such Subsidiary
Guarantor located in the United States, together with all U.S. Mortgage
Supporting Documents relating thereto.
(d) To the extent not previously delivered to the
Administrative Agent, upon written request of the Administrative Agent,
each Borrower shall, and shall cause each Subsidiary Guarantor to,
execute and deliver to the Administrative Agent, for the benefit of the
Secured Parties, promptly and in any event not later than 45 days after
receipt of such notice (or, if such notice is given by the
Administrative Agent at least 45 days prior to the acquisition of such
Real Property or Lease, immediately upon such acquisition), an
Australian Mortgage on any Real Property or Lease of such Borrower or
such Subsidiary Guarantor located in Australia, together with all
Australian Mortgage Supporting Documents relating thereto.
SECTION 7.15 POST-CLOSING DELIVERIES
Each of Holdings and each Borrower shall, and each Borrower
shall cause each of its Subsidiaries to, (a) deliver to the Administrative Agent
each item set forth in Schedule 7.15 (Post-Closing Deliveries), in form and
substance reasonably satisfactory to the Administrative Agent and together with
each certificate or other document ancillary thereto and reasonably requested by
the Administrative Agent and (b) perform each action set forth in Schedule 7.15
(Post-Closing Deliveries) in a manner reasonably satisfactory to the
Administrative Agent and together with each ancillary action reasonably
requested by the Administrative Agent to be performed by any Loan Party in
connection therewith, in each case (x) within the periods set forth opposite
each such item or action on such Schedule and (y) unless otherwise agreed by the
Administrative Agent in respect of any such item or action.
ARTICLE VIII
NEGATIVE COVENANTS
Each of Holdings and the Borrowers agrees with the Lenders,
the Issuers, the Administrative Agent, the Australian Agent and the Australian
Collateral Trustee to each of the following, as long as any Obligation or any
Commitment remains outstanding and, in each case, unless the Requisite Lenders
otherwise consent in writing:
SECTION 8.1 INDEBTEDNESS
None of Holdings or any Borrower shall, nor shall they permit
any of their respective Subsidiaries to, directly or indirectly create, incur,
assume or otherwise become or remain directly or indirectly liable with respect
to any Indebtedness except for the following:
(a) the Secured Obligations (other than in respect of Hedging
Contracts not permitted pursuant to clause (h) below);
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(b) Indebtedness existing on the date of this Agreement and
disclosed on Schedule 8.1 (Existing Indebtedness);
(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) or (l) 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;
(d) (i) Capital Lease Obligations incurred by the Company or
any of its Subsidiaries to finance the acquisition of fixed assets;
provided, however, that the Dollar Equivalent of the aggregate
outstanding principal amount of all such Capital Lease Obligations
shall not exceed $25,000,000 at any time and (ii) purchase money
Indebtedness incurred by the Company or any of its Subsidiaries to
finance the acquisition of fixed assets; provided, however, that the
Dollar Equivalent of the aggregate outstanding principal amount of all
such purchase money Indebtedness shall not exceed $25,000,000 at any
time;
(e) Renewals, extensions, refinancings and refundings of
Indebtedness permitted by clause (d) above or this clause (e);
provided, however, that any such renewal, extension, refinancing or
refunding is in an aggregate principal amount not greater than the
principal amount of, and is on terms no less favorable to the Company
or any of its Subsidiaries with respect to weighted average maturity
and final maturity than, the Indebtedness being renewed, extended,
refinanced or refunded;
(f) Indebtedness arising from intercompany loans (i) from the
Company to any Domestic Subsidiary Guarantor or from any Domestic
Subsidiary Guarantor to the Company or any other Domestic Subsidiary
Guarantor, (ii) from any Australian Loan Party to any other Australian
Loan Party, (iii) from the Company to Australian Holdings, to the
extent made under the Australian Intercompany Credit Agreement or (iv)
from any Borrower or any Subsidiary Guarantor to any Subsidiary of any
Borrower that is not a Subsidiary Guarantor; provided, however, that,
in the case of this clause (iv), the Investment in such intercompany
loan to such Subsidiary is permitted under Section 8.3 (Investments);
(g) Indebtedness arising under any performance, surety or
appeal bond entered into in the ordinary course of business or, in
respect of Australian Subsidiaries, reimbursement or similar
obligations regarding workers' compensation claims;
(h) Obligations under Hedging Contracts permitted under
Section 8.18 (No Speculative Transactions);
(i) Indebtedness in respect of the Senior Notes in an
aggregate principal amount not to exceed $268,000,000 and Indebtedness
in respect of the Subordinated Notes in an aggregate principal amount
not to exceed $150,000,000;
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(j) Indebtedness of any Loan Party (i) constituting
Indebtedness of such Loan Party solely under clause (j) of the
definition of Indebtedness and solely because of a Lien on the Stock or
Stock Equivalents of a Permitted Joint Venture owned by such Loan Party
to secure Indebtedness of such Permitted Joint Venture and its
Subsidiaries and (ii) whose holder's sole recourse to any Loan Party is
through such Lien on such Stock;
(k) at any time after all Revolving Credit Commitments shall
have been terminated (other than pursuant to Section 9.2 (Remedies))
and all Revolving Credit Outstandings shall have been repaid in full,
Indebtedness of any Borrower in respect of unsecured revolving lines of
credit in an aggregate outstanding principal amount and aggregate
commitment in Dollars not exceeding the aggregate Revolving Credit
Commitments as in effect immediately prior to the termination thereof
and otherwise on terms and conditions not significantly different from
those offered to borrowers in the marketplace for similar facilities
(the "Replacement Credit Lines"); provided, however, that such
Replacement Credit Lines shall not contain any mandatory prepayment
provisions until the Term Loan Maturity Date (or until after the Term
Loans shall have irrevocably been paid in full);
(l) Non-Recourse Indebtedness of a Subsidiary of any Borrower
assumed by such Subsidiary in connection with any Permitted Acquisition
(or, if such Subsidiary is acquired as part of such Permitted
Acquisition, existing prior thereto); provided, however, that (i) such
Indebtedness exists at the time of such Permitted Acquisition at least
in the amounts assumed in connection therewith and is not drawn down,
created or increased in contemplation of or in connection with such
Permitted Acquisition and (ii) such Indebtedness is not assumed (in
whole or in part and whether directly or pursuant to Guaranty
Obligations) by any Person that was a Loan Party or a Subsidiary
thereof before giving effect to such Permitted Acquisition;
(m) Indebtedness (other than Guaranty Obligations) arising
from Contractual Obligations incurred by the seller in connection with
an Asset Sale permitted pursuant to Section 8.4 (Sale of Assets) (other
than the Australian Asset Sale) and providing for indemnification,
adjustments of purchase price or similar obligations; provided,
however, that such Indebtedness shall be permitted solely 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; and
(n) (i) Additional Unsecured Indebtedness in an aggregate
principal amount the Dollar Equivalent of which shall not exceed
$200,000,000 and (ii) unsecured Indebtedness not otherwise permitted
under this Section 8.1; provided, however, that the Dollar Equivalent
of the principal amount of all such Indebtedness permitted pursuant to
this clause (ii) shall not exceed $25,000,000 at any time.
SECTION 8.2 LIENS, ETC.
None of Holdings or any Borrower shall, nor shall they permit
any of their respective Subsidiaries to, create or suffer to exist, any Lien
upon or with respect to any of their respective properties or assets, whether
now owned or hereafter acquired, or assign, or permit any of its Subsidiaries to
assign, any right to receive income, except for the following:
(a) Liens created pursuant to the Loan Documents;
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(b) Liens existing on the date of this Agreement and disclosed
on Schedule 8.2 (Existing Liens);
(c) Customary Permitted Liens on the assets of Holdings, the
Company and the Company's Subsidiaries;
(d) purchase money Liens granted by the Company or any of its
Subsidiaries (including the interest of a lessor under a Capital Lease
and purchase money Liens to which any property is subject at the time,
on or after the date hereof, of the Company's or such Subsidiary's
acquisition thereof) securing Indebtedness permitted under Section
8.1(d) (Indebtedness) and limited in each case to the property
purchased with the proceeds of such purchase money Indebtedness or
subject to such Capital Lease;
(e) any Lien securing the renewal, extension, refinancing or
refunding of any Indebtedness secured by any Lien permitted by clause
(b) or (d) above or this clause (e) without any change in the assets
subject to such Lien and to the extent such renewal, extension,
refinancing or refunding is permitted by Section 8.1(e) (Indebtedness);
(f) any Lien securing Non-Recourse Indebtedness permitted
pursuant to Section 8.1(l) (Indebtedness); provided, however, that (i)
such Lien exists at the time of the Permitted Acquisition relating to
such Non-Recourse Indebtedness and is not created in contemplation of
or in connection with such Permitted Acquisition, (ii) such Lien
secures solely fixed assets acquired (or fixed assets of Persons
acquired) as part of such Permitted Acquisition and no assets
constituting Collateral immediately prior to such Permitted Acquisition
are subject to such Lien and (iii) each of the aggregate fair market
value of all assets subject to any such Lien and the aggregate
Non-Recourse Indebtedness secured by all such Liens shall not exceed
$25,000,000 at any time;
(g) Liens in favor of lessors securing operating leases
permitted hereunder;
(h) Liens on the Stock and Stock Equivalents of Permitted
Joint Ventures to secure Indebtedness permitted pursuant to Section
8.1(j) (Indebtedness) if no holder of such Indebtedness has or could
have upon the occurrence of any contingency any recourse against any
Loan Party or any assets of any Loan Party (other than such Stock and
Stock Equivalents); and
(i) Liens not otherwise permitted by the foregoing clauses of
this Section 8.2 securing obligations or other liabilities (other than
Indebtedness) of any Loan Party; provided, however, that the Dollar
Equivalent of the aggregate outstanding amount of all such obligations
and liabilities shall not exceed $5,000,000 at any time.
SECTION 8.3 INVESTMENTS
None of Holdings or any Borrower shall, nor shall they permit
any of their respective Subsidiaries to, directly or indirectly make or maintain
any Investment except for the following:
(a) Investments existing on the date of this Agreement and
disclosed on Schedule 8.3 (Existing Investments);
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(b) Investments in Capital Expenditures of the Company or any
of its Subsidiaries, to the extent such Capital Expenditures are
otherwise permitted hereunder;
(c) Investments in cash and Cash Equivalents held in a Deposit
Account or a Control Account described in Section 7.13(b)(y) (Control
Accounts; Approved Deposit Accounts) or with respect to which the
Administrative Agent, or, as the case may be, the Australian Collateral
Trustee, has a valid, enforceable and first priority perfected Lien for
the benefit of the Secured Parties;
(d) Investments in Hedging Contracts permitted under Section
8.18 (No Speculative Transactions);
(e) Investments in promissory notes and other similar non-cash
consideration received by any Loan Party in connection with Asset Sales
permitted under Section 8.4(k) (Sale of Assets) in which the
Administrative Agent or in respect of any such Collateral located in
Australia, the Australian Collateral Trustee (on behalf of the Secured
Parties) shall have a valid, enforceable and perfected security
interest pursuant to the Collateral Documents;
(f) Investments in accounts, payment intangibles and chattel
paper (each as defined in the UCC), notes receivable and similar items
arising or acquired in the ordinary course of business consistent with
the past practice of the Company and its Subsidiaries;
(g) Investments in pledges, deposits and payment or
performance bonds made or given in the ordinary course of business,
required to be made pursuant to applicable Requirements of Law, in
connection with or to secure obligations under Requirements of Law,
including under health, safety or environmental Requirements of Law;
(h) Investments received in connection with the bankruptcy or
reorganization of suppliers or customers or in settlement of amounts
due (including in settlement or delinquent obligations of, and other
disputes with, suppliers and customers) to the Company or any of its
Subsidiaries effected in the ordinary course of business;
(i) Investments constituting Guaranty Obligations permitted by
Section 8.1 (Indebtedness);
(j) Investments by (i) Holdings in the Company, (ii) the
Company in any Domestic Subsidiary Guarantor or by any Subsidiary of
Holdings or any Borrower in the Company or any Domestic Subsidiary
Guarantor, (iii) any Non-U.S. Guarantor in any other Non-U.S.
Guarantor, (iv) any Subsidiary of the Company that is not a Subsidiary
Guarantor in the Company or any other Subsidiary of the Company, (v)
the Company and Australian Holdings in Australian Holdings and the
Company, respectively, (vi) a Borrower or any Subsidiary Guarantor in
connection with a Permitted Acquisition or (vii) a Borrower or any
Subsidiary Guarantor in any Permitted Joint Venture and in Stock and
Stock Equivalents of other Persons that are neither Joint Ventures nor
Loan Parties; provided, however, that the Dollar Equivalent of the sum
of (A) the aggregate Net Investment Amount at any time of all
Investments in Permitted Joint Ventures, Stock and Stock Equivalents
permitted pursuant to this clause (vii) and (B) the aggregate Net
Investment Amount at such time of all Investments permitted pursuant to
clause (l) below
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shall not exceed $75,000,000; and provided, further, that, on or after
the Closing Date, the Company shall not make any further Investments in
Australian Holdings or any Subsidiary of Australian Holdings other
than, as long as no Default or Event of Default has occurred and is
continuing, (x) on the Closing Date as part of the Transactions, (y) to
the extent such Investments in the aggregate do not cause the
capitalization of Australian Holdings to exceed by more than 5% the
minimum appropriate to comply at all times with applicable Requirements
of Law relating to minimum capitalization (including additional
capitalization that may be required because of additional Investments
made pursuant to the Australian Intercompany Credit Agreement) and (z)
pursuant to, and as evidenced by, the Australian Intercompany Credit
Agreement;
(k) loans or advances to employees or individual independent
contractors of the Company or any of its Subsidiaries in the ordinary
course of business as presently conducted other than any loans or
advances to any director or executive officer (or equivalent thereof)
that would be in violation of Section 402 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act;
provided, however, that the Dollar Equivalent of the aggregate
principal amount of all such loans and advances shall not exceed
$1,000,000 at any time; and
(l) Investments not otherwise permitted by this Section 8.3;
provided, however, that, such Investments are not otherwise prohibited
hereby and the Dollar Equivalent of the sum of (i) the aggregate Net
Investment Amount at any time of all such Investments and (ii) the
aggregate Net Investment Amount at such time of all Investments
permitted pursuant to clause (j)(vii) above shall not exceed in the
aggregate $75,000,000.
SECTION 8.4 SALE OF ASSETS
None of Holdings or any Borrower shall, nor shall they permit
any of their respective Subsidiaries to, sell, convey, transfer, lease or
otherwise dispose of, any of their respective assets or any interest therein
(including the sale or factoring at maturity or collection of any accounts) to
any Person, or permit or suffer any other Person to acquire any interest in any
of their respective assets or, in the case of any Subsidiary, issue or sell any
shares of such Subsidiary's Stock or Stock Equivalent (any such disposition
being an "Asset Sale"), except for the following:
(a) the sale or disposition of Cash Equivalents or Inventory
in the ordinary course of business;
(b) the sale or disposition of Equipment in the ordinary
course of business if such Equipment has become obsolete or is
replaced;
(c) (i) a true lease or sublease of Real Property not
constituting Indebtedness and not constituting a sale and leaseback and
(ii) a sale of assets pursuant to a sale and leaseback permitted under
Section 8.17(b) (Operating Leases; Sale/Leasebacks);
(d) assignments and licenses of intellectual property of the
Company and its Subsidiaries in the ordinary course of business;
(e) any Asset Sale (i) by the Company or any Domestic
Subsidiary Guarantor to the Company or any Domestic Subsidiary
Guarantor, (ii) by any Australian Loan Party to
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any other Australian Loan Party or (iii) by any Subsidiary of the
Company that is not a Loan Party to any Loan Party;
(f) licenses and sublicenses by the Company and its
Subsidiaries of software, trademarks and other intellectual property in
the ordinary course of business and which licenses and sublicenses do
not materially interfere with the business of the Company and its
Subsidiaries;
(g) transfers resulting from any casualty or condemnation of
assets;
(h) pro rata dispositions of property to joint venturers in
connection with the dissolution or termination of a Permitted Joint
Venture to the extent required pursuant to Contractual Obligations
relating to such Permitted Joint Venture and to the extent such
dissolution or termination is otherwise permitted hereunder;
(i) the transactions set forth on Schedule III (Post-Closing
Acquisition Transactions);
(j) as long as no Default or Event of Default is continuing or
would result therefrom, an Asset Sale (the "Australian Asset Sale") for
Fair Market Value in an arm's length transaction of all or
substantially all of the assets of Australian Holdings and its
Subsidiaries or all of the shares of Australian Holdings or Australian
Company, payable solely in cash or Cash Equivalents upon the
consummation of such sale; provided, however, that with respect to any
such Asset Sale pursuant to this clause (j), (A) all Obligations of any
Australian Borrower hereunder, all Secured Obligations of Australian
Holdings and its Subsidiaries and all obligations of Australian
Holdings and its Subsidiaries under the Australian Intercompany Credit
Agreement and the Australian Intercompany Guaranty shall have been
irrevocably paid in full in cash and each Letter of Credit Issued for
the account of any Australian Borrower shall have been terminated (or,
in respect of each such Letter of Credit which shall not have been
terminated, all Reimbursement Obligations and other Secured Obligations
in respect of such Letter of Credit shall have been assumed by the
Company or cash collateral shall have been provided to the
Administrative Agent in an amount equal to 102% of the Letter of Credit
Obligations for such Letter of Credit) and (B) all Net Cash Proceeds of
such Asset Sale shall be applied to the payment of the Obligations as
provided in Section 2.9(d) (Mandatory Prepayments); and
(k) as long as no Default or Event of Default is continuing or
would result therefrom, any other Asset Sale for Fair Market Value,
payable in cash upon such sale; provided, however, that with respect to
any such Asset Sale pursuant to this clause (k), (i) the Dollar
Equivalent of the aggregate consideration received during any Fiscal
Year for all such Asset Sales shall not exceed $25,000,000 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).
SECTION 8.5 RESTRICTED PAYMENTS
No Borrower shall, nor shall any Borrower permit any of its
Subsidiaries to, directly or indirectly, declare, order, pay, make or set apart
any sum for any Restricted Payment except for the following:
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(a) Restricted Payments (i) by any Domestic Subsidiary
Guarantor to the Company or any other Domestic Subsidiary Guarantor or
(ii) by any other Subsidiary of the Company to the Company or any
Subsidiary Guarantor;
(b) dividends and distributions declared and paid on the
common Stock of the Company and payable only in common Stock of the
Company;
(c) cash dividends on the Stock of the Company to Holdings and
on the Stock of Holdings to S&C 2 paid and declared in any Fiscal Year
solely for the purpose of funding the following:
(i) administrative, legal, financial, accounting or
similar ordinary operating expenses and corporate overhead expenses
relating to Holdings, SFC and S&C 2's direct and indirect ownership of
the Company not in excess of $2,500,000 in any Fiscal Year in the
aggregate, to be paid by the Company as and when needed by Holdings,
SFC or S&C 2;
(ii) payments required to be made under the Tax
Sharing Agreement in an amount not greater than the amount of taxes
that would be payable by the Company, on a consolidated basis, if the
Company were the taxpayer; provided, however, that any refunds received
by Holdings, SFC or S&C 2 attributable to the Company and its
Subsidiaries shall promptly be returned by Holdings, SFC and S&C 2 to
the Company;
(iii) payments by SFC or any of its Subsidiaries
(other than the Cattle Feed Companies) in respect of (A) the Management
Agreement or the Financial Advisory Agreement, to the extent such
payments are permitted pursuant to clause (e)(v) of Section 8.9
(Transactions with Permitted Joint Ventures and Affiliates) and (B)
payment of costs and expenses in respect of the Transactions in an
amount not to exceed $70,000,000 in the aggregate;
(iv) cash payments by Holdings, SFC or S&C 2 to be
made in lieu of the issuance of fractional shares in connection with
the exercise of any Stock Equivalents of Holdings, SFC or S&C 2; and
(v) the repurchase, redemption or other acquisition
or retirement for value of any of the Stock or Stock Equivalents of
Holdings, SFC or S&C 2 held by any then existing or former director,
officer, employee, individual that is an independent contractor or
consultant of SFC, Holdings, S&C 2, the Company or any of the Company's
Subsidiaries; or their respective assigns, estates or heirs; provided,
however, that the aggregate amount of Restricted Payments made to fund
payments made pursuant to this clause (v) (other than as a result of
the death or disability of any such director, officer, employee or
individual) shall not exceed $1,000,000 in the aggregate;
(vi) cash payment of interest on the Seller Note
required pursuant to the provisions thereof as in effect on the Closing
Date after an initial public offering of SFC or S&C 2; and
(d) any other cash dividend by the Company; provided, however,
that, both at the time such dividend is declared and at the time such
dividend is paid and both before and after giving effect to such
dividend (and any other dividend that has been declared but
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has not been paid), (i) the Company shall be in compliance with the
covenants set forth in Article V (Financial Covenants) for the most
recently ended Fiscal Quarter or Fiscal Year for which Financial
Statements have been provided pursuant to Section 6.1 (Financial
Statements) on a Pro Forma Basis assuming that such dividend (and any
other dividend that has been declared or paid since the last day of
such Fiscal Quarter or Fiscal Year) was paid on the last day of such
Fiscal Quarter and (ii) the Aggregate Available Revolving Credit shall
equal or exceed $100,000,000; and provided, further, that, after giving
effect to such dividend, the aggregate of all dividends made or
declared pursuant to this clause (d) shall not exceed the Restricted
Payment Allowance at each time of determination;
provided, however, that the Restricted Payments described in clauses (c) and (d)
above (other than those described in clause (c)(ii) thereof) shall not be
permitted if either (A) an Event of Default or Default shall have occurred and
be continuing at the date of declaration or payment thereof or would result
therefrom or (B) such Restricted Payment is prohibited under the terms of any
Indebtedness (other than the Obligations) of the Company or any of its
Subsidiaries.
SECTION 8.6 PREPAYMENT AND CANCELLATION OF INDEBTEDNESS
(a) None of Holdings or any Borrower shall, nor shall they
permit any of their respective Subsidiaries to, cancel any claim or
Indebtedness owed to any of them except in the ordinary course of
business.
(b) None of Holdings or any Borrower shall, nor shall they
permit any of their Subsidiaries to, prepay, redeem, purchase, defease
or otherwise satisfy prior to the scheduled maturity thereof in any
manner, or make any payment in violation of any subordination terms of,
any Indebtedness; provided, however, that this Section 8.6 (Prepayment
and Cancellation of Indebtedness) shall not prohibit, as long as all
terms of such transaction are otherwise in accordance with this
Agreement, Holdings and its Subsidiaries from (i) prepaying the
Obligations in accordance with the terms of this Agreement and, other
than after the occurrence and during the continuance of any Event of
Default, prepaying or repaying the Replacement Credit Line in
accordance with the Replacement Credit Documents, prepaying or repaying
any obligation under the Australian Intercompany Credit Agreement in
accordance with the terms thereof, (ii) making, to the extent permitted
by the terms thereof, regularly scheduled or otherwise required
repayments or redemptions of Indebtedness, (iii) prepaying any
Indebtedness payable to any Loan Party, (iv) prepaying, renewing,
extending, refinancing and refunding Indebtedness, as long as such
renewal, extension, refinancing and refunding is permitted under
Section 8.1(e) (Indebtedness), (v) exchanging any Indebtedness
permitted hereunder (other than the Secured Obligations) for Stock or
Stock Equivalents of Holdings or for Indebtedness permitted to be
incurred hereunder, provided, however, that (A) in the case of any
Stock or Stock Equivalents, no Loan Party is under any obligation as a
result of such exchange to declare dividends on or redeem, purchase,
retire, defease or otherwise acquire for value such Stock or Stock
Equivalents (other than at the option of a Loan Party or after the
latest maturity of any Permitted Unsecured Indebtedness but including
solely at the option of other Persons and pursuant to a sinking fund
obligation or otherwise), (B) in the case of such Indebtedness, such
Indebtedness is junior to, or pari passu with, such exchanged
Indebtedness and the Obligations and (C) such Stock, Stock Equivalents
or Indebtedness is otherwise on terms no less favorable to the Loan
Parties that those of such exchanged Indebtedness, and
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(vi) repaying or prepaying Indebtedness incurred pursuant to clause
(d), (h) or (n)(ii) of Section 8.1 (Indebtedness) in accordance with
the terms thereof.
SECTION 8.7 RESTRICTION ON FUNDAMENTAL CHANGES; PERMITTED
ACQUISITIONS
Except, other than in respect of clause (e) below, in
connection with a Permitted Acquisition, none of Holdings or any Borrower shall,
nor shall they permit any of their respective Subsidiaries to, (a) merge with
any Person, (b) consolidate with any Person, (c) acquire all or substantially
all of the Stock or Stock Equivalents of any Person, (d) acquire all or
substantially all of the assets of any Person or all or substantially all of the
assets constituting the business of a division, branch or other unit operation
of any Person, (e) enter into any Joint Venture (other than a Permitted Joint
Venture) or own any Stock or Stock Equivalents in respect of any such Joint
Venture or (f) create any Subsidiary unless, after giving effect to such
creation, such Subsidiary is a Wholly-Owned Subsidiary of any Borrower, each
Borrower is in compliance with Section 7.11 (Additional Collateral and
Guaranties) within 10 Business Days after the creation thereof and the
Investment in such Subsidiary is permitted under Section 8.3 (Investments);
provided, however, that (x) any Domestic Subsidiary of the Company may be merged
or consolidated with or into the Company or any Domestic Subsidiary Guarantor,
as long as the Company or such Domestic Subsidiary Guarantor is the surviving
corporation, (y) any Subsidiary of Australian Holdings may be merged or
consolidated with or into any Australian Borrower or (if such Subsidiary is not
an Australian Borrower) any Subsidiary Guarantor that is a Subsidiary of the
Australian Holdings organized and existing under the laws of Australia, as long
as such Australian Borrower or, as the case may be, such Subsidiary Guarantor is
the surviving corporation.
SECTION 8.8 CHANGE IN NATURE OF BUSINESS
(a) No Borrower shall, nor shall any Borrower permit any of
its Subsidiaries to, make any material change in the nature or conduct
of its business as carried on at the date hereof, whether in connection
with a Permitted Acquisition or otherwise.
(b) Holdings shall not engage in any business or activity and
shall not own any significant assets or have any material liabilities
other than (i) shares in the Stock of the Company, (ii) obligations
under this Agreement, the other Loan Documents and the Related
Documents or as part of the Transactions and Indebtedness permitted to
be incurred by Holdings under Section 8.1 (Indebtedness) and (iii)
activities that are incidental to (x) the maintenance of its corporate
existence in compliance with applicable Requirements of Law and (y)
legal, tax and accounting matters in connection with any activity
otherwise permitted hereunder.
SECTION 8.9 TRANSACTIONS WITH PERMITTED JOINT VENTURES AND
AFFILIATES
Except for the transactions set forth on Schedule III
(Post-Closing Acquisition Transactions), no Borrower shall, nor shall any
Borrower permit any of its Subsidiaries to, except as otherwise expressly
permitted herein (including under the Related Documents or as part of the
Transactions), do any of the following: (a) make any Investment in an Affiliate
of the Company that is not a Subsidiary of the Company or a Permitted Joint
Venture, (b) transfer, sell, lease, assign or otherwise dispose of any asset to
any Affiliate of any Borrower that is not a Subsidiary of the Company or a
Permitted Joint Venture (other than Restricted Payments permitted under Section
8.5 (Restricted Payments)), (c) merge into or consolidate with or purchase or
acquire assets from any Affiliate of any Borrower that is not a Subsidiary of
the Company, (d) repay any
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Indebtedness to any Affiliate of any Borrower that is not a Subsidiary of any
Borrower or a Permitted Joint Venture or (e) enter into any transaction pursuant
to the Cattle Supply Agreement or enter into any other transaction directly or
indirectly with or for the benefit of any Permitted Joint Venture or any
Affiliate of any Borrower that is not a Guarantor (including guaranties and
assumptions of obligations of any such Affiliate), except, in the case of
clauses (a) through (e) above, for (i) transactions in the ordinary course of
business, not otherwise prohibited hereunder and on a basis no less favorable to
such Borrower or such Subsidiary as would be obtained in a comparable arm's
length transaction with a Person not an Affiliate thereof and not a Permitted
Joint Venture, (ii) salaries and other director or employee compensation to
officers or directors of the Company or any of its Subsidiaries in the ordinary
course of business, (iii) Restricted Payments permitted under Section 8.5
(Restricted Payments), (iv) payments pursuant to the Tax Sharing Agreement
described in Section 8.5(c)(ii) (Restricted Payments) and payments pursuant to
any Loan Document or any Related Document and (v) payments contemplated in the
Management Agreement or the Financial Advisory Agreement, each in the form
presented to the Administrative Agent on the date hereof in the amounts
contemplated therein on the date hereof; provided, however, that,
notwithstanding anything else to the contrary in this Agreement, no such
payments shall be made under the Management Agreement or the Financial Advisory
Agreement as long as any Default or Event of Default has occurred and is
continuing.
SECTION 8.10 LIMITATIONS ON RESTRICTIONS ON SUBSIDIARY
DISTRIBUTIONS; NO NEW NEGATIVE PLEDGE
Except pursuant to the Loan Documents, any Permitted Unsecured
Debt Document and any agreements governing purchase money Indebtedness or
Capital Lease Obligations permitted by Section 8.1(b), (d) or (e) (Indebtedness)
(in which latter case, any prohibition or limitation shall only be effective
against the assets financed thereby), no Borrower shall, nor shall any Borrower
permit any of its Subsidiaries (other than Permitted Joint Ventures) to, (a)
agree to enter into or suffer to exist or become effective any Contractual
Obligation expressly restricting, or other consensual encumbrance or express
restriction of any kind on, the ability of such Subsidiary to pay dividends or
make any other distribution or transfer of funds or assets or make loans or
advances to or other Investments in, or pay any Indebtedness owed to, any
Borrower or any Subsidiary of any Borrower or (b) enter into or suffer to exist
or become effective any Contractual Obligation prohibiting or limiting the
ability of any Borrower or any Subsidiary of any Borrower to create, incur,
assume or suffer to exist any Lien upon any of its property, assets or revenues,
whether now owned or hereafter acquired, to secure the Obligations, including
any agreement requiring any other Indebtedness or Contractual Obligation to be
equally and ratably secured with the Obligations.
SECTION 8.11 MODIFICATION OF CONSTITUENT DOCUMENTS
None of Holdings or any Borrower shall, nor shall they permit
any of their respective Subsidiaries to, amend its Constituent Documents, except
for changes and amendments that are permitted by this Agreement or do not
materially adversely affect the rights and privileges of Holdings, any Borrower
or any of their respective Subsidiaries and do not materially adversely affect
the interests of the Administrative Agent, the Australian Agent, the Australian
Collateral Trustee, the Lenders, the Issuers or the other Secured Parties under
the Loan Documents or in the Collateral.
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SECTION 8.12 MODIFICATION OF RELATED DOCUMENTS
Neither Holdings nor any Borrower shall, nor shall they permit
any of their respective Subsidiaries to, (a) alter, rescind, terminate, amend,
supplement, waive or otherwise modify any provision of any Related Document
(except for modifications to the terms of any Permitted Unsecured Debt Document
permitted under Section 8.13 (Modification of Permitted Unsecured Indebtedness)
and modifications that do not materially adversely affect the rights and
privileges of Holdings, any Borrower or any of their respective Subsidiaries
under such Related Document and that do not materially adversely affect the
interests of the Secured Parties under the Loan Documents or in the Collateral)
or (b) permit any breach or default to exist under any Related Document or take
or fail to take any action thereunder, except for those that would not result in
any breach or default thereunder, if to do so could reasonably be expected to
have a Material Adverse Effect.
SECTION 8.13 MODIFICATION OF PERMITTED UNSECURED INDEBTEDNESS
Neither Holdings nor any Borrower shall, nor shall they permit
any of their respective Subsidiaries to, change or amend the terms of any
Permitted Unsecured Debt Document if the effect of such amendment is to (a)
increase the interest rate (or decrease the portion of such interest rate that
is not required to be paid in cash) on any Permitted Unsecured Indebtedness, (b)
change the dates upon which payments of principal or interest are due on any
Permitted Unsecured Indebtedness other than, in each case, to extend such dates,
(c) change any default or event of default other than to delete or make less
restrictive any default provision therein, or add any covenant with respect to
any Permitted Unsecured Indebtedness, (d) change the redemption or prepayment
provisions of any Permitted Unsecured Indebtedness other than to extend the
dates therefor or to reduce the premiums payable in connection therewith, (e)
change any subordination provision of any Permitted Unsecured Indebtedness or
(f) change or amend any other term if such change or amendment would materially
increase the obligations of the obligor or confer additional material rights to
the holder of any Permitted Unsecured Indebtedness in a manner adverse to
Holdings, any Borrower, any of their respective Subsidiaries, the Administrative
Agent, the Australian Agent, the Australian Collateral Trustee or any Lender,
Issuer or other Secured Party.
SECTION 8.14 ACCOUNTING CHANGES; FISCAL YEAR
Neither Holdings nor any Borrower shall, nor shall they permit
any of their respective Subsidiaries to, change its (a) accounting treatment and
reporting practices or tax reporting treatment, except as required by GAAP or
any Requirement of Law and disclosed to the Lenders and the Administrative Agent
or (b) Fiscal Year; provided, however, that, to the extent the Company shall not
have changed its Fiscal Year from a Fiscal Year ending May 31 to a Fiscal Year
ending August 31 on or before the Closing Date, the Company shall be permitted
to make such change at any time prior to the Sunday immediately preceding May
31, 2003.
SECTION 8.15 MARGIN REGULATIONS
No part of the proceeds of any Borrowings or borrowing of any
Swing Loans shall be used, whether directly or indirectly, for any purpose that
entails a violation of Regulation T, U or X of the Federal Reserve Board.
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SECTION 8.16 ▇▇▇▇▇▇▇▇-▇▇▇▇▇ ACT
Neither Holdings nor any Borrower shall, nor shall they permit
any of their Subsidiaries to, make any loans to any directors or executive
officer (or equivalent thereof) in violation of Section 402 of the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act (Section 13 of the Exchange Act) or fail to comply with any
other provision of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act.
SECTION 8.17 OPERATING LEASES; SALE/LEASEBACKS
(a) No Borrower shall, nor shall any Borrower permit any of
its Subsidiaries to, become or remain liable as lessee or guarantor or
other surety with respect to any operating lease, unless the Dollar
Equivalent of the aggregate amount of all rents paid or accrued under
all such operating leases shall not exceed $15,000,000 in any Fiscal
Year.
(b) No Borrower shall, nor shall any Borrower permit any of
its Subsidiaries to, enter into any sale and leaseback transaction if,
after giving effect to such sale and leaseback transaction, the Dollar
Equivalent of the aggregate Fair Market Value of all properties covered
by sale and leaseback transactions would exceed $25,000,000.
SECTION 8.18 NO SPECULATIVE TRANSACTIONS
No Borrower shall, nor shall any Borrower permit any of its
Subsidiaries to, engage in any speculative transaction or in any transaction
involving Hedging Contracts except as for the sole purpose of hedging in the
normal course of business and consistent with industry practices.
SECTION 8.19 COMPLIANCE WITH ERISA
None of Holdings or any Borrower shall cause or permit to
occur, nor shall any Borrower permit any of its Subsidiaries or ERISA Affiliates
to cause or permit to occur, (a) an event that could result in the imposition of
a Lien under Section 412 of the Code or Section 302 or 4068 of ERISA or (b) any
ERISA Event that, individually or in the aggregate, would have a Material
Adverse Effect or (c) without the prior approval of the Administrative Agent
(which approval shall not be unreasonably withheld), establishment of a Title IV
Plan or contribution to a Multiemployer Plan other than such Plans listed on
Schedule 4.17 (List of Plans). None of Holdings, the Company or any of the
Company's Subsidiaries shall take any action (including any steps to terminate
any Compensation Plan), or make any omission (including any failure to make any
required contributions to any Compensation Plan), with respect to any
Compensation Plan, in either case that could reasonably be expected to (i)
result in liabilities to Holdings, the Company or any of the Company's
Subsidiaries the Dollar Equivalent of which shall be in excess of $7,000,000 in
the aggregate, (ii) give rise to a Lien over any of the properties, assets or
revenues of Holdings, the Company or any of the Company's Subsidiaries or (iii)
result in a Material Adverse Effect.
SECTION 8.20 ENVIRONMENTAL
No Borrower shall, nor shall any Borrower permit any of its
Subsidiaries to, allow a Release of any Contaminant in violation of any
Environmental Law; provided, however, that no Borrower shall be deemed in
violation of this Section 8.20 if all Environmental Liabilities and Costs (other
than those reflected in the Projections or the Financial Statements that were
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delivered pursuant to Section 4.4 (Financial Statements) prior to the date
hereof) incurred or reasonably expected to be incurred by the Loan Parties as
the consequence of all such Releases shall not have a Dollar Equivalent
exceeding $7,000,000 in the aggregate.
ARTICLE IX
EVENTS OF DEFAULT
SECTION 9.1 EVENTS OF DEFAULT
Each of the following events shall be an Event of Default:
(a) any Borrower shall fail to pay any principal of any Loan
or any Reimbursement Obligation when the same becomes due and payable;
or
(b) any Borrower shall fail to pay any interest on any Loan,
any fee under any of the Loan Documents or any other Obligation (other
than one referred to in clause (a) above) and such non-payment
continues for a period of five Business Days after the due date
therefor; or
(c) any representation or warranty made or deemed made by any
Loan Party in any Loan Document or by any Loan Party (or any of its
officers) in connection with any Loan Document shall prove to have been
incorrect in any material respect when made or deemed made; or
(d) any Loan Party shall fail to perform or observe (i) any
term, covenant or agreement contained in Article V (Financial
Covenants), Section 6.2 (Default Notices), 7.1 (Preservation of
Corporate Existence, Etc.), 7.6 (Access), 7.9 (Use of Proceeds;
Ranking), 7.11 (Additional Collateral and Guaranties), 7.13(a) (Control
Accounts; Approved Deposit Accounts), 7.14 (Real Property), 7.15
(Post-Closing Deliveries) or Article VIII (Negative Covenants), (ii)
any term, covenant or agreement contained in Section 6.1 (Financial
Statements), if such failure shall remain unremedied for 5 days, or
(iii) any other term, covenant or agreement contained in this Agreement
or in any other Loan Document if such failure under this clause (iii)
shall remain unremedied for 30 days after the earlier of (A) the date
on which a Responsible Officer of any Borrower becomes aware of such
failure and (B) the date on which written notice thereof shall have
been given to the Company by any Agent, Lender, Issuer or other Secured
Party; or
(e) (i) Holdings, any Borrower or any Subsidiary of any
Borrower shall fail to make any payment on any Indebtedness of
Holdings, any such Borrower or any such Subsidiary (other than the
Obligations) or any Guaranty Obligation in respect of Indebtedness of
any other Person, (ii) any other event shall occur or condition shall
exist under any agreement or instrument relating to any such
Indebtedness, if the effect of such event or condition is to
accelerate, or to permit the acceleration of, the maturity of such
Indebtedness or (iii) any such Indebtedness shall become or be declared
to be due and payable, or required to be prepaid or repurchased (other
than by a regularly scheduled required prepayment), prior to the stated
maturity thereof, and, for each of clause (i), (ii) and (iii) above,
such failure relates to Indebtedness having a principal amount whose
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Dollar Equivalent equals or exceeds $10,000,000, when the same becomes
due and payable (whether by scheduled maturity, required prepayment,
acceleration, demand or otherwise); or
(f) (i) Holdings, any Borrower or any Subsidiary of any
Borrower shall (A) generally not pay its debts as such debts become
due, shall admit in writing its inability to pay its debts generally or
shall make a general assignment for the benefit of creditors or (B) in
the case of any Australian Subsidiary, have a controller or be
insolvent, under administration or insolvency, in receivership, in
receivership and management, in liquidation, in provisional
liquidation, under administration, wound up, subject to any
arrangement, deed of arrangement, assignment or composition, protected
from creditors under any statute or dissolved (other than to carry out
a reconstruction while solvent), in each case under and as defined
Australian Requirements of Law (including the Australian Corporations
Act), (ii) any proceeding shall be instituted by or against Holdings,
any Borrower or any Subsidiary of any Borrower seeking to adjudicate it
a bankrupt or insolvent, or seeking liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief or
composition of it or its debts, under any Requirement of Law relating
to bankruptcy, insolvency or reorganization or relief of debtors, or
seeking the entry of an order for relief or the appointment of a
custodian, receiver, trustee or other similar official for it or for
any substantial part of its property; provided, however, that, in the
case of any such proceedings instituted against Holdings, any Borrower
or any Subsidiary of any Borrower (but not instituted by Holdings, any
Borrower or any Subsidiary of any Borrower), either such proceedings
shall remain undismissed or unstayed for a period of 60 days or more or
any action sought in such proceedings shall occur or (iii) Holdings,
any Borrower or any Subsidiary of any Borrower shall take any corporate
action to authorize any action set forth in clauses (i) and (ii) above;
or
(g) one or more judgments or orders (or other similar process)
involving, in the case of money judgments, an aggregate amount whose
Dollar Equivalent exceeds $7,000,000, to the extent not covered by
insurance, shall be rendered against one or more of any Loan Party and
its Subsidiaries and either (i) enforcement proceedings shall have been
commenced by any creditor upon such judgment or order or (ii) there
shall be any period of 30 consecutive days during which a stay of
enforcement of such judgment or order, by reason of a pending appeal or
otherwise, shall not be in effect; or
(h) an ERISA Event shall occur and the amount of all
liabilities and deficiencies resulting therefrom, whether or not
assessed, exceeds $10,000,000 in the aggregate; or
(i) Holdings, the Company or any of its Subsidiaries shall
take any action (including any steps to terminate any Compensation
Plan), or make any omission (including any failure to make any required
contributions to any Compensation Plan), with respect to any
Compensation Plan, in either case that could reasonably be expected to
(i) result in liabilities for Holdings, the Company or any of the
Company's Subsidiaries the Dollar Equivalent of which shall be in
excess of $10,000,000 in the aggregate, (ii) give rise to a Lien over
any of the properties, assets or revenues of Holdings, the Company or
any of the Company's Subsidiaries or (iii) result in a Material Adverse
Effect; or
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(j) any provision of any Loan Document after delivery thereof
shall for any reason fail or cease to be valid and binding on, or
enforceable against, any Loan Party party thereto, or any Loan Party
shall so state in writing (and, if such invalidity (together with all
other invalidities existing at the time of determination thereof)
relates solely to Collateral whose aggregate value has a Dollar
Equivalent of $1,000,000 or less and such invalidity is such so as to
be amenable to cure without material disadvantage to the position of
the Administrative Agent, the Australian Agent, the Australian
Collateral Trustee and the other Secured Parties under any Loan
Document, such invalidity shall not be cured within 30 days of the
earlier of such Loan Party so stating in writing or delivery of notice
thereof by the Administrative Agent to the Company (or such shorter
period as shall be specified by the Administrative Agent and is
reasonable under the circumstances)); or
(k) any Collateral Document shall for any reason fail or cease
to create a valid and enforceable Lien on any Collateral purported to
be covered thereby or, except as permitted by the Loan Documents, such
Lien shall fail or cease to be a perfected and first-priority Lien, or
the Sponsors, SFC, S&C 2 or any Loan Party shall so state in writing
(and, if such invalidity relates solely to Collateral whose aggregate
value has a Dollar Equivalent of $1,000,000 or less and such invalidity
is such so as to be amenable to cure without material disadvantage to
the position of the Administrative Agent, the Australian Agent, the
Australian Collateral Trustee and the other Secured Parties under any
Loan Document, such invalidity shall not be cured within 30 days of the
earlier of any Loan Party having so stated in writing or the delivery
of notice thereof by the Administrative Agent to the Company (or such
shorter period as shall be specified by the Administrative Agent and is
reasonable under the circumstances)); or
(l) there shall occur any Change of Control or any "Change of
Control" under and as defined in any Permitted Unsecured Debt Document
or any similar event requiring any Loan Party to offer to purchase any
Indebtedness referred to in Section 8.1(n) (Indebtedness); or
(m) there shall occur any Australian Event of Default; or
(n) at any time (other than, to the extent such Australian
Asset Sale is permitted pursuant to Section 8.4(j) (Sale of Assets), on
and after the date of the consummation of the Australian Asset Sale),
the Company shall cease to own 100% of the Stock of Australian Holdings
or, after its acquisition thereof pursuant to the Acquisition,
Australian Holdings shall cease to own 100% of the Stock of the
Australian Company; or
(o) one or more of Holdings, any Borrower and any Subsidiary
of any Borrower shall have entered into one or more consent or
settlement decrees or agreements or similar arrangements with a
Governmental Authority or one or more judgments, orders, decrees or
similar actions shall have been entered against one or more of
Holdings, any Borrower and any Subsidiary of any Borrower based on or
arising from the violation of or pursuant to any Environmental Law, or
the generation, storage, transportation, treatment, disposal or Release
of any Contaminant and, in connection with all the foregoing, Holdings,
the Company and its Subsidiaries are likely to incur in any Fiscal Year
Environmental Liabilities and Costs whose Dollar Equivalent shall
exceed $7,000,000 in the aggregate that were not reflected in the
Projections or the Financial
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Statements delivered pursuant to Section 4.4 (Financial Statements)
prior to the date hereof.
SECTION 9.2 REMEDIES
During the continuance of any Event of Default, the
Administrative Agent (a) may, and, at the request of the Requisite Lenders,
shall, by notice to the Company declare that all or any portion of the
Commitments be terminated, whereupon the obligation of each Lender to make any
Loan and each Issuer to Issue any Letter of Credit shall immediately terminate
and the Australian Dollar Sublimits of each Australian Dollar Lender shall be
reduced to zero and (b) may, and, at the request of the Requisite Lenders,
shall, by notice to the Company, declare the Loans, all interest thereon and all
other amounts and Obligations payable under this Agreement to be forthwith due
and payable, whereupon the Loans, all such interest and all such amounts and
Obligations shall become and be forthwith due and payable and the Australian
Dollar Sublimit of each Lender shall be reduced to zero, in each case without
presentment, demand, protest or further notice of any kind, all of which are
hereby expressly waived by each Borrower; provided, however, that upon the
occurrence of the Events of Default specified in Section 9.1(f) (Events of
Default), (x) the Commitments of each Lender to make Loans and the commitments
of each Lender and Issuer to Issue or participate in Letters of Credit shall
each automatically be terminated and (y) the Loans, all such interest and all
such amounts and Obligations shall automatically become and be due and payable,
without presentment, demand, protest or any notice of any kind, all of which are
hereby expressly waived by each Borrower. In addition to the remedies set forth
above, the Administrative Agent, the Australian Agent and the Collateral Trustee
may exercise any remedies provided for by the Collateral Documents in accordance
with the terms thereof or any other remedies provided by applicable law.
SECTION 9.3 ACTIONS IN RESPECT OF LETTERS OF CREDIT
At any time (i) on the Revolving Credit Termination Date, (ii)
after the Revolving Credit Termination Date when the aggregate funds in all Cash
Collateral Accounts of any Borrower shall be less than 102% of the outstanding
Letter of Credit Obligations of such Borrower, (iii) to the extent required by
Section 2.9(d) or (e) (Mandatory Prepayments) and (iv) to the extent required by
any Issuer of Governmental Bank Guarantees or by the Australian Agent in respect
of Government Bank Guarantees, such Borrower shall pay to the Administrative
Agent in immediately available Dollars at the Administrative Agent's office
referred to in Section 11.8 (Notices, Etc.), for deposit in such Borrower's Cash
Collateral Accounts, the amounts required in Dollars so that the aggregate funds
in Dollars in the Cash Collateral Accounts of such Borrower shall equal or
exceed (x) in the case of clauses (i), (ii) and (iv) above, 102% of the sum of
all outstanding Letter of Credit Obligations of such Borrower, (y) in the case
of clause (iii) above, the amount required by such Section 2.9(d) or (e)
(Mandatory Prepayments) to be maintained in such account to cash collateralize
Letter of Credit Obligations. The Administrative Agent and the Australian Agent
may, from time to time after funds are deposited in any Cash Collateral Account,
apply funds then held in such Cash Collateral Account to the payment of any
amounts, in accordance with Section 2.13(g) (Payments and Computations), as
shall have become or shall become due and payable by any Borrower to the Issuers
or Lenders in respect of the aggregate Letter of Credit Obligations of the
Borrowers. Each of the Administrative Agent and the Australian Agent shall
promptly give written notice of any such application; provided, however, that
the failure to give such written notice shall not invalidate any such
application. When permitted under Section 2.9(e) (Mandatory Prepayments) and
Section 2.13 (Payments and Computations), after all Letters of Credit shall have
expired or be
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fully drawn and all Letter of Credit Obligations and other Obligations shall
have been paid in full, the balance (if any) in such Cash Collateral Accounts
shall be returned to the Borrower or other Person lawfully entitled thereto.
SECTION 9.4 RESCISSION
If at any time after termination of the Commitments or
acceleration of the maturity of the Loans, each Borrower shall pay all arrears
of interest and all payments on account of principal of the Loans owing by it
and Reimbursement Obligations of such Borrower that shall have become due
otherwise than by acceleration (with interest on principal and, to the extent
permitted by law, on overdue interest, at the rates specified herein) and all
Events of Default and Defaults (other than non-payment of principal of and
accrued interest on the Loans due and payable solely by virtue of acceleration)
shall be remedied or waived pursuant to Section 11.1 (Amendments, Waivers,
Etc.), then upon the written consent of the Requisite Lenders and written notice
to the Company, the termination of the Commitments or the acceleration and their
consequences may be rescinded and annulled; provided, however, that such action
shall not affect any subsequent Event of Default or Default or impair any right
or remedy consequent thereon. The provisions of the preceding sentence are
intended merely to bind the Lenders and the Issuers to a decision that may be
made at the election of the Requisite Lenders, and such provisions are not
intended to benefit any Borrower and do not give any Borrower the right to
require the Lenders to rescind or annul any acceleration hereunder, even if the
conditions set forth herein are met.
ARTICLE X
THE ADMINISTRATIVE AGENT; OTHER AGENTS
SECTION 10.1 AUTHORIZATION AND ACTION
(a) Each Lender and each Issuer hereby appoints Citicorp as
the Administrative Agent and the Australian Agent and Citisecurities as
the Australian Collateral Trustee hereunder and each Lender and each
Issuer authorizes each of the Administrative Agent, Australian Agent
and Australian Collateral Trustee to take such action as agent on its
behalf and to exercise such powers under this Agreement and the other
Loan Documents as are delegated to the Administrative Agent, the
Australian Agent and the Australian Collateral Trustee under such
agreements and to exercise such powers as are reasonably incidental
thereto. Without limiting the foregoing, each Lender and each Issuer
hereby authorizes the Administrative Agent, the Australian Agent and
the Australian Collateral Trustee to (i) execute and deliver, and to
perform its obligations under, each of the Loan Documents to which the
Administrative Agent, the Australian Agent or the Australian Collateral
Trustee is a party, to (ii) exercise all rights, powers and remedies
that the Administrative Agent, the Australian Agent or the Australian
Collateral Trustee may have under such Loan Documents, (iii) in the
case of the Collateral Documents, to act as agent for the Lenders,
Issuers and the other Secured Parties under such Collateral Documents
and (iv) solely for the purposes of limiting the amount of parties to a
Japanese enforcement proceeding and in the expectation or preparation
of such a Japanese enforcement proceeding, and solely, in the
Administrative Agent's judgement at the time of such relinquishment and
after giving effect thereto, if the Administrative
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Agent is satisfied that (A) the Obligations owing to the Lenders and
Issuers remaining beneficiaries of the Japanese Stock Pledges at such
time would seem to suffice to appropriately enforce the Lenders' and
Issuers' Japanese Stock Pledges and (B) such remaining Lenders and
Issuers have agreed to comply with Section 11.7 (Sharing of Payments,
Etc.), to act in the name of such Lender or Issuer, and to execute all
appropriate documents and perform appropriate actions in respect
thereto, to relinquish such Lender's or Issuer's rights under either
Japanese Stock Pledge. Each Lender and each Issuer hereby appoints
JPMorgan as Syndication Agent and each of GECC, U.S. Bank and Rabobank
as Documentation Agent and hereby authorizes each of them to act in
such capacity on behalf of each such Lender and each such Issuer in
accordance with the terms of this Agreement and the other Loan
Documents.
(b) As to any matters not expressly provided for by this
Agreement and the other Loan Documents (including enforcement or
collection), none of the Administrative Agent, the Australian Agent or
the Australian Collateral Trustee shall be required to exercise any
discretion or take any action, but shall be required to act or to
refrain from acting (and shall be fully protected in so acting or
refraining from acting) upon the instructions of the Requisite Lenders,
and such instructions shall be binding upon all Lenders and each
Issuer; provided, however, that none of the Administrative Agent, the
Australian Agent or the Australian Collateral Trustee shall be required
to take any action that (i) such Agent in good faith believes exposes
such Agent to personal liability unless such Agent receives an
indemnification satisfactory to it from the Lenders and the Issuers
with respect to such action or (ii) is contrary to this Agreement or
applicable law; and provided, further, that each of the Administrative
Agent and the Australian Agent may forward instructions to the
Australian Collateral Trustee to perform, pursuant to any Australian
Collateral Document, any action permitted hereunder and the Australian
Collateral Trustee shall, when not prohibited to do so under the
applicable Australian Collateral Document, follow such instructions.
Each of the Administrative Agent, the Australian Agent and the
Australian Collateral Trustee agrees to give to each Lender and each
Issuer prompt notice of each notice given to it by any Loan Party
pursuant to the terms of this Agreement or the other Loan Documents.
(c) In performing its functions and duties hereunder and under
the other Loan Documents, each of the Administrative Agent and the
Australian Agent is acting solely on behalf of the Lenders and the
Issuers and each of the duties of the Administrative Agent, the
Australian Agent and the Australian Collateral Trustee are entirely
administrative in nature. None the Administrative Agent, the Australian
Agent or the Australian Collateral Trustee assumes, and none shall be
deemed to have assumed, any obligation other than as expressly set
forth herein and in the other Loan Documents or any other relationship
as the agent, fiduciary or trustee of or for any Lender, Issuer or
holder of any other Obligation. Each of the Administrative Agent, the
Australian Agent and the Australian Collateral Trustee may perform any
of its duties under any Loan Document by or through its agents,
employees or Affiliates and may delegate its duties to its Affiliates.
Each Lender and Issuer hereby acknowledges and agrees that Citicorp may
perform its duties as Australian Agent through Citibank Australia.
(d) Duties of Other Agents. Notwithstanding anything to the
contrary contained in this Agreement, each of JPMorgan, GECC, U.S. Bank
and Rabobank is a Lender designated as "Syndication Agent" or
"Documentation Agent" for title purposes only and,
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in such capacity, shall have no obligations or duties whatsoever under
this Agreement or any other Loan Document to any Loan Party, any Lender
or any Issuer and shall have no rights separate from its rights as a
Lender except as expressly provided in this Agreement.
SECTION 10.2 AGENT'S RELIANCE, ETC.
No Agent, no Affiliate of any Agent and no director, officer,
agent or employee of any of them shall be liable for any action taken or omitted
to be taken by it, him, her or them under or in connection with this Agreement
or the other Loan Documents, except for its, his, her or their own gross
negligence or willful misconduct. Without limiting the foregoing, each of the
Administrative Agent, the Australian Agent and the Australian Collateral Trustee
(a) may treat the payee of any Note or Australian Debenture as its holder until
such Note or Australian Debenture has been assigned in accordance with Section
11.2 (Assignments and Participations), (b) may rely on the Register to the
extent set forth in Section 11.2(c) (Assignments and Participations), (c) may
consult with legal counsel (including counsel to any Borrower or any other Loan
Party), independent public accountants and other experts selected by it and
shall not be liable for any action taken or omitted to be taken in good faith by
it in accordance with the advice of such counsel, accountants or experts, (d)
makes no warranty or representation to any Lender or Issuer and shall not be
responsible to any Lender or Issuer for any statements, warranties or
representations made by or on behalf of any Borrower or any of its Subsidiaries
in or in connection with this Agreement or any other Loan Document, (e) shall
not have any duty to ascertain or to inquire either as to the performance or
observance of any term, covenant or condition of this Agreement or any other
Loan Document, as to the financial condition of any Loan Party or as to the
existence or possible existence of any Default or Event of Default, (f) shall
not be responsible to any Lender or Issuer for the due execution, legality,
validity, enforceability, genuineness, sufficiency or value of, or the
attachment, perfection or priority of any Lien created or purported to be
created under or in connection with, this Agreement, any other Loan Document or
any other instrument or document furnished pursuant hereto or thereto and (g)
shall incur no liability under or in respect of this Agreement or any other Loan
Document by acting upon any notice, consent, certificate or other instrument or
writing (which writing may be a telecopy or electronic mail) or any telephone
message believed by it to be genuine and signed or sent by the proper party or
parties.
SECTION 10.3 EACH AGENT INDIVIDUALLY
With respect to their Ratable Portions and Australian Dollar
Ratable Portions, to the extent any of them is a Lender hereunder, each of
Citicorp, JPMorgan, Citibank Australia, Citisecurities, GECC, U.S. Bank and
Rabobank shall have and may exercise the same rights and powers hereunder and is
subject to the same obligations and liabilities as and to the extent set forth
herein for any other Lender. The terms "Australian Dollar Lenders", "Lenders",
"Revolving Credit Lenders", "Term Loan Lenders", "Requisite Lenders", "Requisite
Revolving Credit Lenders", "Requisite Term Loan Lenders", "Requisite Australian
Dollar Lenders" and any similar terms shall, unless the context clearly
otherwise indicates, include, without limitation, each of Citicorp, JPMorgan,
Citibank Australia, Citisecurities, GECC, U.S. Bank and Rabobank in its
individual capacity as an Australian Dollar Lender, Lender, Revolving Credit
Lender, Term Loan Lender or as one of the Requisite Lenders, Requisite Revolving
Credit Lenders, Requisite Term Loan Lenders, Requisite Australian Dollar
Lenders. Each of Citicorp, JPMorgan, Citibank Australia, Citisecurities, GECC,
U.S. Bank and Rabobank and each of their respective Affiliates may accept
deposits from, lend money to, and generally engage in any kind of banking, trust
or
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other business with, any Loan Party as if Citicorp was not acting as
Administrative Agent and the Australian Agent, JPMorgan was not acting as
Syndication Agent, Citibank Australia was not acting as the Australian Agent,
Citisecurities was not acting as the Australian Collateral Trustee and none of
GECC, U.S. Bank or Rabobank was acting as Documentation Agent.
SECTION 10.4 LENDER CREDIT DECISION
Each Lender and each Issuer acknowledges that it shall,
independently and without reliance upon any Agent or any other Lender conduct
its own independent investigation of the financial condition and affairs of each
Borrower and each other Loan Party in connection with the making and continuance
of the Loans and with the issuance of the Letters of Credit. Each Lender and
each Issuer also acknowledges that it shall, independently and without reliance
upon any Agent or any other Lender and based on such documents and information
as it shall deem appropriate at the time, continue to make its own credit
decisions in taking or not taking action under this Agreement and other Loan
Documents.
SECTION 10.5 INDEMNIFICATION
Each Lender agrees to indemnify each Agent, each of their
respective Affiliates, and each director, officer, employee, agent and advisor
of any of them (to the extent not reimbursed by any Borrower), from and against
such Lender's aggregate Ratable Portion in the Facilities of any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses and disbursements (including reasonable fees, expenses and
disbursements of financial and legal advisors) of any kind or nature whatsoever
that may be imposed on, incurred by, or asserted against, any Agent (in its
capacity as such) or any of Affiliate, director, officer, employee, agent and
advisor of any Agent (in its capacity as such) in any way relating to or arising
out of this Agreement or the other Loan Documents or any action taken or omitted
by any Agent (in its capacity as such) under this Agreement or the other Loan
Documents; provided, however, that no Lender shall be liable for any portion of
such liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting from such Agent's or such
Affiliate's gross negligence or willful misconduct. Without limiting the
foregoing, each Lender agrees to reimburse each Agent promptly upon demand for
its Ratable Portion in the Facilities of any out-of-pocket expenses (including
reasonable fees, expenses and disbursements of financial and legal advisors)
incurred by such Agent in connection with the preparation, execution, delivery,
administration, modification, amendment or enforcement (whether through
negotiations, legal proceedings or otherwise) of, or legal advice in respect of
its rights or responsibilities under, this Agreement or the other Loan
Documents, to the extent that such Agent is not reimbursed for such expenses by
any Borrower or any other Loan Party.
SECTION 10.6 SUCCESSOR ADMINISTRATIVE AGENT, AUSTRALIAN AGENT
AND AUSTRALIAN COLLATERAL TRUSTEE
(a) The Administrative Agent may resign at any time by giving
written notice thereof to the Lenders and the Company. Upon any such
resignation, the Requisite Lenders shall have the right to appoint a
successor Administrative Agent. If no successor Administrative Agent
shall have been so appointed by the Requisite Lenders, and shall have
accepted such appointment, within 30 days after the retiring
Administrative Agent's giving of notice of resignation, then the
retiring Administrative Agent may, on behalf of the Lenders, appoint a
successor Administrative Agent, selected from among the Lenders. In
either case, such appointment shall be subject to the prior written
approval of the
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Company (which approval may not be unreasonably withheld and shall not
be required upon the occurrence and during the continuance of an Event
of Default). Upon the acceptance of any appointment as Administrative
Agent by a successor Administrative Agent, such successor
Administrative Agent shall succeed to, and become vested with, all the
rights, powers, privileges and duties of the retiring Administrative
Agent, and the retiring Administrative Agent shall be discharged from
its duties and obligations under this Agreement and the other Loan
Documents. Prior to any retiring Administrative Agent's resignation
hereunder as Administrative Agent, the retiring Administrative Agent
shall take such action as may be reasonably necessary to assign to the
successor Administrative Agent its rights as Administrative Agent under
the Loan Documents. After such resignation, the retiring Administrative
Agent shall continue to have the benefit of this Article X as to any
actions taken or omitted to be taken by it while it was Administrative
Agent under this Agreement and the other Loan Documents.
(b) The Australian Agent may resign at any time by giving
written notice thereof to the Lenders and the Company. Upon any such
resignation, the Requisite Lenders shall have the right to appoint a
successor Australian Agent. If no successor Australian Agent shall have
been so appointed by the Requisite Lenders, and shall have accepted
such appointment, within 30 days after the retiring Australian Agent's
giving of notice of resignation, then the retiring Australian Agent
may, on behalf of the Lenders, appoint a successor Australian Agent,
selected from among the Lenders. In either case, such appointment shall
be subject to the prior written approval of the Company (which approval
may not be unreasonably withheld and shall not be required upon the
occurrence and during the continuance of an Event of Default). Upon the
acceptance of any appointment as Australian Agent by a successor
Australian Agent, such successor Australian Agent shall succeed to, and
become vested with, all the rights, powers, privileges and duties of
the retiring Australian Agent, and the retiring Australian Agent shall
be discharged from its duties and obligations under this Agreement and
the other Loan Documents. Prior to any retiring Australian Agent's
resignation hereunder as Australian Agent, the retiring Australian
Agent shall take such action as may be reasonably necessary to assign
to the successor Australian Agent its rights as Australian Agent under
the Loan Documents. After such resignation, the retiring Australian
Agent shall continue to have the benefit of this Article X as to any
actions taken or omitted to be taken by it while it was Australian
Agent under this Agreement and the other Loan Documents.
(c) The Australian Collateral Trustee may resign, and a
successor Australian Collateral Trustee may, with the consent of the
Administrative Agent, be appointed on the terms set forth in the
Australian Collateral Documents. Upon the acceptance of any appointment
as Australian Collateral Agent by a successor Australian Collateral
Agent, such successor Australian Collateral Agent shall succeed to, and
become vested with, all the rights, powers, privileges and duties of
the retiring Australian Collateral Agent, and the retiring Australian
Collateral Agent shall be discharged from its duties and obligations
under this Agreement and the other Loan Documents. Prior to any
retiring Australian Collateral Agent's resignation hereunder as
Australian Collateral Agent, the retiring Australian Collateral Agent
shall take such action as may be reasonably necessary to assign to the
successor Australian Collateral Agent its rights as Australian
Collateral Agent under the Loan Documents. After such resignation, the
retiring Australian Collateral Agent shall continue to have the benefit
of this Article X as to any
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actions taken or omitted to be taken by it while it was Australian
Collateral Agent under this Agreement and the other Loan Documents.
SECTION 10.7 CONCERNING THE COLLATERAL AND THE COLLATERAL
DOCUMENTS
(a) Each Lender and each Issuer agrees that any action taken
by the Administrative Agent, the Australian Agent, the Australian
Collateral Trustee or the Requisite Lenders (or, where required by the
express terms of this Agreement, a greater proportion of the Lenders)
in accordance with the provisions of this Agreement or of the other
Loan Documents, and the exercise by the Administrative Agent, the
Australian Agent, the Australian Collateral Trustee or the Requisite
Lenders (or, where so required, such greater proportion of the Lenders)
of the powers set forth herein or therein, together with such other
powers as are reasonably incidental thereto, shall be authorized and
binding upon all of the Lenders, Issuers and other Secured Parties.
Without limiting the generality of the foregoing, each of the
Administrative Agent, the Australian Agent and the Australian
Collateral Trustee shall have the sole and exclusive right and
authority to (i) act as the disbursing and collecting agent for the
Lenders and the Issuers with respect to all payments and collections
arising in connection herewith and with the Collateral Documents, (ii)
execute and deliver each Collateral Document and accept delivery of
each such agreement delivered by any Borrower or any Subsidiary of any
Borrower, (iii) act as collateral agent for the Lenders, the Issuers
and the other Secured Parties for purposes of the perfection of all
security interests and Liens created by such agreements and all other
purposes stated therein, provided, however, that each of the
Administrative Agent, the Australian Agent and the Australian
Collateral Trustee hereby appoints, authorizes and directs each other
Agent and each Lender and Issuer to act as collateral sub-agent for the
Administrative Agent, the Australian Agent, the Australian Collateral
Trustee, the Lenders and the Issuers for purposes of the perfection of
all security interests and Liens with respect to the Borrowers' and
their Subsidiaries' respective Deposit Accounts maintained with, and
cash and Cash Equivalents held by, such Lender or such Issuer, (iv)
manage, supervise and otherwise deal with the Collateral, (v) take such
action as is necessary or desirable to maintain the perfection and
priority of the security interests and Liens created or purported to be
created by the Collateral Documents and (vi) except as may be otherwise
specifically restricted by the terms hereof or of any other Loan
Document, exercise all remedies given to the Administrative Agent, the
Australian Agent, the Australian Collateral Trustee, the Lenders, the
Issuers and the other Secured Parties with respect to the Collateral
under the Loan Documents relating thereto, applicable law or otherwise.
(b) Each of the Lenders and the Issuers hereby directs, in
accordance with the terms hereof, the Administrative Agent and the
Australian Collateral Trustee to release (or, in the case of clause
(ii) below, release or subordinate) any Lien or Guaranty held by the
Administrative Agent or the Australian Collateral Trustee for the
benefit of the Lenders and the Issuers against any of the following:
(i) all of the Collateral and all Loan Parties, upon
termination of the Commitments and payment and satisfaction in full of
all Loans, all Reimbursement Obligations and all other Obligations that
the Administrative Agent has been notified in writing are then due and
payable (and, in respect of contingent Letter of Credit Obligations of
any Borrower, with respect to which cash collateral has been deposited
or a back-up letter of credit or bank guarantee has been issued, in
either case in the
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appropriate currency and on terms satisfactory to the Administrative
Agent and the applicable Issuers);
(ii) any assets that are subject to a Lien permitted
by Section 8.2(d) or (e) (Liens, Etc.);
(iii) any Stock and Stock Equivalents of a Permitted
Joint Venture, solely to the extent necessary to permit the creation
and maintenance of a Lien permitted under Section 8.2(h) (Liens, Etc.);
and
(iv) any Loan Party (other than the Company) if such
Loan Party is sold or disposed of in a sale or disposition permitted by
this Agreement (or permitted pursuant to a waiver or consent given in
accordance with the terms of this Agreement with respect to a
transaction otherwise prohibited by this Agreement) or any part of the
Collateral sold or disposed of by a Loan Party, if such sale or
disposition is permitted by this Agreement (or permitted pursuant to a
waiver or consent given in accordance with the terms of this Agreement
with respect to a transaction otherwise prohibited by this Agreement).
Each of the Lenders and the Issuers hereby directs the Administrative Agent and
the Australian Collateral Trustee to execute and deliver or file such
termination and partial release statements and do such other things as are
necessary to release Liens to be released pursuant to this Section 10.7 promptly
upon the effectiveness of any such release.
SECTION 10.8 COLLATERAL MATTERS RELATING TO RELATED
OBLIGATIONS
The benefit of the Loan Documents and of the provisions of
this Agreement relating to the Collateral shall extend to and be available in
respect of any Secured Obligation arising under any Hedging Contract or Cash
Management Obligation or that is otherwise owed to Persons other than the
Agents, the Lenders and the Issuers (collectively, "Related Obligations") solely
on the condition and understanding, as among the Administrative Agent, the
Australian Agent and the Australian Collateral Trustee, on the one hand, and all
Secured Parties, on the other hand, that (a) the Related Obligations shall be
entitled to the benefit of the Loan Documents and the Collateral to the extent
expressly set forth in this Agreement and the other Loan Documents and to such
extent the Administrative Agent, the Australian Agent or the Australian
Collateral Trustee shall hold, and have the right and power to act with respect
to, the Guaranties and the Collateral on behalf of and as agent for the holders
of the Related Obligations, but each of the Administrative Agent, the Australian
Agent and the Australian Collateral Trustee is otherwise acting solely as agent
for the Lenders and the Issuers and shall have no fiduciary duty, duty of
loyalty, duty of care, duty of disclosure or other obligation whatsoever to any
holder of Related Obligations, (b) all matters, acts and omissions relating in
any manner to the Guaranties, the Collateral, or the omission, creation,
perfection, priority, abandonment or release of any Lien, shall be governed
solely by the provisions of this Agreement and the other Loan Documents and no
separate Lien, right, power or remedy shall arise or exist in favor of any
Secured Party under any separate instrument or agreement or in respect of any
Related Obligation, (c) each Secured Party shall be bound by all actions taken
or omitted, in accordance with the provisions of this Agreement and the other
Loan Documents, by the Administrative Agent, the Australian Agent, the
Australian Collateral Trustee and the Requisite Lenders, each of whom shall be
entitled to act at its sole discretion and exclusively in its own interest given
its own Commitments, Australian Dollar Sublimits and its own interest in the
Loans, Letter of Credit Obligations and other
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Obligations to it arising under this Agreement or the other Loan Documents,
without any duty or liability to any other Secured Party or as to any Related
Obligation and without regard to whether any Related Obligation remains
outstanding or is deprived of the benefit of the Collateral or becomes unsecured
or is otherwise affected or put in jeopardy thereby, (d) no holder of Related
Obligations and no other Secured Party (except the Agents, the Lenders and the
Issuers, to the extent set forth in this Agreement) shall have any right to be
notified of, or to direct, require or be heard with respect to, any action taken
or omitted in respect of the Collateral or under this Agreement or the Loan
Documents and (e) no holder of any Related Obligation shall exercise any right
of setoff, banker's lien or similar right except to the extent such holder was
granted such right in Section 11.6 (Right of Set-off).
ARTICLE XI
MISCELLANEOUS
SECTION 11.1 AMENDMENTS, WAIVERS, ETC.
(a) No amendment or waiver of any provision of this Agreement
or any other Loan Document nor consent to any departure by any Loan
Party therefrom shall in any event be effective unless the same shall
be in writing and signed by the Requisite Lenders (or by the
Administrative Agent with the consent of the Requisite Lenders) and, in
the case of any amendment, by each Borrower, and then any such waiver
or consent shall be effective only in the specific instance and for the
specific purpose for which given; provided, however, that no amendment,
waiver or consent shall, unless in writing and signed by each Lender
directly affected thereby (or, with respect to clause (x) below, each
Revolving Credit Lender directly affected thereby), in addition to the
Requisite Lenders (or the Administrative Agent with the consent
thereof), do any of the following:
(i) waive any condition specified in Section 3.1
(Conditions Precedent to Initial Loans and Letters of Credit) or 3.2(b)
(Conditions Precedent to Each Loan and Letter of Credit), except with
respect to a condition based upon another provision hereof, the waiver
of which requires only the concurrence of the Requisite Lenders and, in
the case of the conditions specified in Section 3.1 (Conditions
Precedent to Initial Loans and Letters of Credit), subject to the
provisions of Section 3.3 (Determinations of Initial Borrowing
Conditions);
(ii) increase the Commitment or Australian Dollar
Sublimit of such Lender or subject such Lender to any additional
obligation; provided, however, that any such increase with respect to
the Term Loan Commitment, the Revolving Credit Commitments or the
Australian Dollar Sublimits shall require the consent of the Requisite
Term Loan Lenders, the Requisite Revolving Credit Lenders, or the
Requisite Australian Dollar Lenders, as the case may be;
(iii) extend the scheduled final maturity of any Loan
owing to such Lender, or waive, reduce or postpone any scheduled date
fixed for the payment or reduction of principal or interest of any such
Loan or fees owing to such Lender (it being understood that Section 2.9
(Mandatory Prepayments) does not provide for scheduled
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dates fixed for payment) or for the reduction of such Lender's
Commitment or Australian Dollar Sublimit;
(iv) reduce or forgive the principal amount of any
Loan or Reimbursement Obligation owing to such Lender (other than by
the payment or prepayment thereof);
(v) reduce the rate of interest on any Loan or
Reimbursement Obligation outstanding to such Lender or any fee payable
hereunder to such Lender;
(vi) subordinate any of the Secured Obligations or
any Liens securing the Secured Obligations;
(vii) postpone any scheduled date fixed for payment
of such interest or fees owing to such Lender or waive any such
payment;
(viii) change the aggregate Ratable Portions or
Australian Dollar Ratable Portions of Lenders required for any or all
Lenders to take any action hereunder;
(ix) release all or substantially all of the
Collateral except as provided in Section 10.7(b) (Concerning the
Collateral and the Collateral Documents) or release any Borrower from
its payment obligation to such Lender under this Agreement, the
Australian Debentures or the Notes (if any) owing to such Lender or
release any Guarantor from its obligations under the Guaranties except
in connection with the sale or other disposition of a Subsidiary
Guarantor (or all or substantially all of the assets thereof) permitted
by this Agreement (or permitted pursuant to a waiver or consent of a
transaction otherwise prohibited by this Agreement);
(x) increase any of the percentages set forth in the
definitions of "Fixed Asset Value", "Inventory Borrowing Base" and
"Receivables Borrowing Base" above the maximum percentages stated in
such definitions on the date hereof; or
(xi) amend Section 10.7(b) (Concerning the Collateral
and the Collateral Documents), Section 11.7 (Sharing of Payments,
Etc.), this Section 11.1 or either definition of the terms "Requisite
Lenders", "Requisite Term Loan Lenders", "Requisite Revolving Credit
Lenders", "Ratable Portion" or "Australian Dollar Ratable Portion";
and provided, further, that (x)(1) any modification of the application of
payments to the Term Loans pursuant to Section 2.9 (Mandatory Prepayments) or
Section 2.13(g) (Payments and Computations), any waiver of any payment that
would otherwise be made to the Term Loans pursuant to Section 2.9 (Mandatory
Prepayments) shall require the consent of the Requisite Term Loan Lenders, (2)
any modification of the application of payments to the Revolving Loans pursuant
to Section 2.9 (Mandatory Prepayments) or Section 2.13(g) (Payments and
Computations), any waiver of any payment that would otherwise be made to the
Revolving Loans pursuant to Section 2.9 (Mandatory Prepayments) shall require
the consent of the Requisite Revolving Credit Lenders, (3) any modification of
the application of payments to the Australian Dollar Loans pursuant to Section
2.9 (Mandatory Prepayments) or Section 2.13(g) (Payments and Computations)
expressly differentiating between the interests of the Australian Dollar Lenders
and the Revolving Credit Lenders and materially adversely affecting the
interests of either the
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Australian Dollar Lenders or the Revolving Credit Lenders and any waiver of any
payment that would otherwise be made to the Australian Dollar Loans pursuant to
Section 2.9 (Mandatory Prepayments) shall require the consent of the Requisite
Australian Dollar Lenders or the Requisite Revolving Credit Lenders, as the case
may be, and (4) any modification of the definition of the term "Requisite
Australian Dollar Lenders" shall require the consent of all Australian Dollar
Lenders, (y) no amendment, waiver or consent shall, unless in writing and signed
by any Special Purpose Vehicle that has been granted an option pursuant to
Section 11.2(g) (Assignments and Participations) affect the grant or nature of
such option or the right or duties of such Special Purpose Vehicle hereunder and
(z)(1) no amendment, waiver or consent shall, unless in writing and signed by
the Administrative Agent in addition to the Lenders required above to take such
action, affect the rights or duties of the Administrative Agent under this
Agreement or the other Loan Documents or change Section 11.7 (Sharing of
Payments, Etc.), (2) no amendment, waiver or consent shall, unless in writing
and signed by the Swing Loan Lender in addition to the Lenders required above to
take such action, affect the rights or duties of the Swing Loan Lender under
this Agreement or the other Loan Documents, (2) no amendment, waiver or consent
shall, unless in writing and signed by the Australian Agent in addition to the
Lenders required above to take such action, affect the rights or duties of the
Australian Agent under this Agreement or the other Loan Documents, (3) no
amendment, waiver or consent shall, unless in writing and signed by the
Australian Collateral Trustee in addition to the Lenders required above to take
such action, affect the rights or duties of the Australian Collateral Trustee
under this Agreement or the other Loan Documents and (4) no amendment, waiver or
consent shall, unless in writing and signed by the Requisite Australian Dollar
Lenders in addition to the Lenders required above to take such action, affect
the rights or duties of the Australian Dollar Lenders under this Agreement or
the other Loan Documents.
(b) The Administrative Agent may, but shall have no obligation
to, with the written concurrence of any Lender, execute amendments,
modifications, waivers or consents on behalf of such Lender. Any waiver
or consent shall be effective only in the specific instance and for the
specific purpose for which it was given. No notice to or demand on any
Borrower in any case shall entitle any Borrower to any other or further
notice or demand in similar or other circumstances.
(c) If, in connection with any proposed amendment,
modification, waiver or termination (a "Proposed Change") requiring the
consent of all affected Lenders, the consent of Requisite Lenders is
obtained but the consent of other Lenders whose consent is required is
not obtained (any such Lender whose consent is not obtained as
described in this Section 11.1 being referred to as a "Non-Consenting
Lender"), then, as long as the Lender acting as the Administrative
Agent is not a Non-Consenting Lender, at the Company's request, an
Eligible Assignee acceptable to the Administrative Agent shall have the
right with the Administrative Agent's consent and in the Administrative
Agent's sole discretion (but shall have no obligation) to purchase from
such Non-Consenting Lender, and such Non-Consenting Lender agrees that
it shall, upon the Administrative Agent's request, sell and assign to
such Eligible Assignee, all of the Commitments, Term Loans, Australian
Dollar Sublimit and aggregate Revolving Credit Outstandings (and the
Australian Debentures corresponding to any of them) of such
Non-Consenting Lender for an amount equal to the principal balance of
all Loans held by the Non-Consenting Lender (other than, if such
Eligible Assignee shall not be an Australian Dollar Lender, the
Australian Dollar Loans owing to such Non-Consenting Lender) and all
accrued and unpaid interest and fees with respect thereto through the
date of sale; provided, however,
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that such purchase and sale shall not be effective until the
Administrative Agent shall have received from such Eligible Assignee an
agreement in form and substance satisfactory to the Administrative
Agent and the Company whereby such Eligible Assignee shall agree to be
bound by the terms hereof and such Non-Consenting Lender shall have
received payments of all Loans held by it and all accrued and unpaid
interest and fees with respect thereto through the date of the sale;
and provided, further, that, if such Non-Consenting Lender is an
Australian Dollar Lender and such Eligible Assignee is not an
Australian Dollar Lender, (i) such Eligible Assignee shall not be an
assignee of the Australian Dollar Sublimit of such Non-Consenting
Lender and may purchase the rights and obligations of such
Non-Consenting Lender hereunder (other than in respect of the
Australian Dollar Sublimit) as provided above, (ii) on the date of such
purchase, the Australian Dollar Sublimit of such Non-Consenting Lender
shall be terminated and such Non-Consenting Lender's Australian Dollar
Ratable Portion of the Australian Dollar Outstandings shall be replaced
by, in accordance with Section 2.11(d) (Conversion and Continuation),
Base Rate Loans made in Dollars and, notwithstanding any other
provision hereof, the proceeds of the Revolving Dollar Loans shall be
given in their entirety to the Non-Consenting Lender and not, as may be
otherwise provided hereunder, to each Australian Dollar Lender
according to its Australian Dollar Ratable Portion. Each Lender agrees
that, if it becomes a Non-Consenting Lender, it shall execute and
deliver to the Administrative Agent an Assignment an Acceptance to
evidence such sale and purchase and shall deliver to the Administrative
Agent any Note (if the assigning Lender's Loans are evidenced by any
Note) subject to such Assignment and Acceptance; provided, however,
that the failure of any Non-Consenting Lender to execute an Assignment
and Acceptance shall not render such sale and purchase (and the
corresponding assignment) invalid.
SECTION 11.2 ASSIGNMENTS AND PARTICIPATIONS
(a) Each Lender may sell, transfer, negotiate or assign to one
or more Eligible Assignees all or a portion of its rights and
obligations hereunder (including all of its rights and obligations with
respect to the Term Loans, the Revolving Dollar Loans, the Australian
Dollar Loans, the Swing Loans and the Letters of Credit) to any
Eligible Assignee (that is, (x) in case of any assignment by any Swing
Loan Lender, a Swing Loan Lender and, (y) in case of any assignment by
any Australian Dollar Lender of its Australian Dollar Outstandings or
its Australian Dollar Sublimit, an Australian Dollar Lender); provided,
however, that, if such Lender knows that such Eligible Assignee shall
be resident in the State of Victoria, Australia, such Lender agrees to
request that such Eligible Assignee consult with the Company regarding
ways to minimize stamp duty in such state as a result of such
assignment; and provided, further, that:
(i) (A) if any such assignment shall be of the
assigning Lender's aggregate Revolving Credit Dollar Outstandings or
Revolving Credit Commitments, such assignment shall cover the same
percentage of such Lender's aggregate Revolving Credit Dollar
Outstandings and Revolving Credit Commitments, (B) if any such
assignment shall be of the assigning Lender's Term Loans or Term Loan
Commitment, such assignment shall cover the same percentage of such
Lender's Term Loans and Term Loan Commitment and (C) if any such
assignment shall be of the assigning Lender's aggregate Australian
Dollar Outstandings or Australian Dollar Sublimit, such assignment
shall
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cover the same percentage of such assigning Lender's Australian Dollar
Loans and Australian Dollar Sublimit;
(ii) the aggregate amount being assigned pursuant to
each such assignment (determined as of the date of the Assignment and
Acceptance with respect to such assignment) shall in no event (if less
than the Assignor's entire interest) be (x) in the case of an
assignment of any Revolving Credit Outstandings in Dollars or any
Revolving Credit Commitment, other than one of the Currency Thresholds
applicable to Dollars, (y) in the case of an assignment of any
Revolving Credit Outstandings in Australian Dollars or Australian
Dollar Sublimit by any Australian Dollar Lender, other than A$2,000,000
or any multiple of A$1,000,000 in excess thereof and (y) in the case of
an assignment of the Term Loans, other than an integral multiple of
$1,000,000, except, in each case, (A) with the consent of the Company
and the Administrative Agent or (B) if such assignment is being made to
a Lender or an Affiliate or Approved Fund of a Lender;
(iii) the Australian Debentures (and the Loans
corresponding thereto) may only be assigned in whole and may not be
assigned except through, and to the extent of, an assignment of the
Loans in accordance with this Agreement corresponding to such
Australian Debentures, and then only to the assignee of such Loans; and
(iv) if such Eligible Assignee is not, prior to the
date of such assignment, a Lender or an Affiliate or Approved Fund of a
Lender, such assignment shall be subject to the prior consent of the
Administrative Agent and the Company (which consent shall not be
unreasonably withheld or delayed);
and provided, further, that, notwithstanding any other provision of this Section
11.2, the consent of the Company shall not be required for any assignment
occurring when any Event of Default shall have occurred and be continuing. Any
such assignment need not be ratable as among the Term Loan Facility and the
Revolving Credit Facility or the Dollar Revolving Credit Facility and the
Australian Dollar Subfacility.
(b) The parties to each such assignment shall execute and
deliver to the Administrative Agent, for its acceptance and recording,
an Assignment and Acceptance, together with any Note (if the assigning
Lender's Loans are evidenced by a Note) subject to such assignment.
Upon the execution, delivery, acceptance and recording of any
Assignment and Acceptance and, other than in respect of assignments
made pursuant to Section 2.17 (Substitution of Lenders) and Section
11.1(c) (Amendments, Waivers, Etc.) and other than assignments to which
the Administrative Agent is a party, the receipt by the Administrative
Agent from the assignee (unless such assignee is an Affiliate or an
Approved Fund of the assignor) of an assignment fee in the amount of
$3,500 from and after the effective date specified in such Assignment
and Acceptance, (i) the assignee thereunder shall become a party hereto
and, to the extent that rights and obligations under the Loan Documents
have been assigned to such assignee pursuant to such Assignment and
Acceptance, have the rights and obligations of a Lender and, if such
Lender were an Issuer, of such Issuer hereunder and thereunder, (ii)
the Notes (if any) and the Australian Debentures corresponding to the
Loans assigned thereby shall be transferred to such assignee by
notification in the Register and (iii) the assignor thereunder shall,
to the extent that rights and obligations under this Agreement have
been assigned by it pursuant to such Assignment and Acceptance,
relinquish its rights (except for those surviving the payment in full
of the Obligations) and be released from its obligations under the Loan
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CREDIT AGREEMENT
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Documents, other than those relating to events or circumstances
occurring prior to such assignment (and, in the case of an Assignment
and Acceptance covering all or the remaining portion of an assigning
Lender's rights and obligations under the Loan Documents, such Lender
shall cease to be a party hereto).
(c) The Administrative Agent (or, if requested by the
Administrative Agent, the Australian Agent), acting on behalf of the
Borrowers (solely for purposes of maintaining such Register), shall
maintain at its address referred to in Section 11.8 (Notices, Etc.) a
copy of each Assignment and Acceptance delivered to and accepted by it
and a register for the recording of the names and addresses of the
Lenders and the Commitments of and principal amount of the Loans and
Letter of Credit Obligations owing to each Lender from time to time
(the "Register"); provided, however, that, in respect to Australian
Debentures, the Register shall contain (i) the number of such
Australian Debentures held by any Lender (which shall equal the
principal amount of the Loans owing to the corresponding Lender by each
Australian Borrower), (ii) the issue date of each such Australian
Debenture (which shall be the date the corresponding Loan shall have
been made hereunder), (iii) the name and address of each Lender that is
an initial holder of each Australian Debenture and of each Lender to
whom each Australian Debenture is subsequently transferred (which shall
be the name of each holder and transferee of the corresponding Loans),
(iv) the maturity date and currency of each such Australian Debenture
(which shall be the Scheduled Termination Date or the date of repayment
of the Term Loans, depending on the Loans corresponding thereto), (v)
details of all transfers, assignments or substitutions (including date,
amount and parties), (vi) each Lenders' Australian tax file number or
exemption details (to the extent provided) and (vii) any other
information that the Administrative Agent considers necessary or that
is otherwise required pursuant to Australian Requirements of Law to be
included therein; and provided, further, that no notice of any trust or
other interest in any Note or Australian Debenture needs to be entered
in the Register and none of the Administrative Agent or any Loan Party
shall be required to take notice of any other interest in, or claim to,
any Note or Australian Debenture, except as necessary pursuant to any
Requirement of Law. Neither the Administrative Agent or the Australian
Agent shall have any liability under this clause (c) for failure to
maintain, improperly maintaining or updating or otherwise in respect of
such Register.
(d) Each Note and Australian Debenture shall be issued on the
terms and conditions set forth herein upon its entrance in the
Register. The entries in the Register shall be conclusive and binding
for all purposes, absent fraud or manifest error. Each such entry shall
constitute an acknowledgment by each Loan Party of the Obligations
thereunder, an undertaking by the Loan Parties to make all payments in
respect of the Australian Debentures and the Notes in accordance with
the terms thereof and hereof and an entitlement to the other benefits
given to the Lenders hereunder in respect of the Australian Debentures.
The Loan Parties, the Administrative Agent, the Australian Agent and
the Lenders may treat each Person whose name is recorded in the
Register as a Lender (and, in the case of an Australian Debenture, the
owner and holder thereof) for all purposes of this Agreement. The
Register shall be available for inspection by the Company, the
Administrative Agent, the Australian Agent or any Lender at any
reasonable time and from time to time upon reasonable prior notice and,
upon request of any Lender, the Administrative Agent (or, to the extent
the Register is maintained by it, the Australian Agent) shall provide
to such Lender a certified extract of the information
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entered therein in relation to that Lender and the Australian
Debentures held by it. The Administrative Agent (and, to the extent the
Register is maintained by it, the Australian Agent) agrees to update
the Register when provided with any updated information by any Lender
and to correct the information therein if it becomes aware that the
Register is incorrect or incomplete.
(e) Notwithstanding anything to the contrary contained in
clause (b) above, the Loans (including the Australian Debentures
corresponding to such Loan and the Notes evidencing such Loan) are
registered obligations, and the right, title, and interest of the
Lenders and their assignees in and to such Loans shall be transferable
only upon notation of such transfer in the Register. No assignment
pursuant to this Section 11.2 shall be effective until such assignment
is recorded in the Register. A Note and an Australian Debenture shall
only evidence the Lender's or an assignee's right, title and interest
in and to the related Loan, and in no event is any such Note or
Australian Debenture to be considered a bearer instrument or
obligation. This Section 11.2 shall be construed so that (i) the Loans
are at all times maintained in "registered form" within the meaning of
Sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code
and any related regulations (or any successor provisions of the
Internal Revenue Code or such regulations) and (ii) the requirements of
Section 128F of the Australian Tax Act shall be satisfied with respect
to the Loans made to the Australian Borrowers. Solely for purposes of
this Section 11.2 and for tax purposes only, the Administrative Agent
(and, to the extent the Register is maintained by it, the Australian
Agent) shall act as the agent of each Borrower for purposes of
maintaining such notations of transfer in the Register (and each
Borrower hereby irrevocably appoints the Administrative Agent and the
Australian Agent for such purpose). Except as may be requested by the
Administrative Agent, no Person other than the Administrative Agent and
the Australian Agent shall be appointed by any Loan Party to create or
maintain the Register, and no register shall be maintained in respect
of the Loans, the Notes or the Australian Debentures by or on behalf of
the Loan Parties other than the Register.
(f) Upon its receipt of an Assignment and Acceptance executed
by an assigning Lender and an assignee, the Administrative Agent shall,
if such Assignment and Acceptance has been completed, (i) accept such
Assignment and Acceptance, (ii) record or cause to be recorded the
information contained therein in the Register and (iii) give prompt
notice thereof to the Company. Within five Business Days after its
receipt of such notice, each Borrower, at its own expense, shall, if
requested by such assignee, execute and deliver to the Administrative
Agent, new Notes to the order of such assignee in an amount equal to
the Commitments and Australian Dollar Sublimits assumed by it pursuant
to such Assignment and Acceptance and, if the assigning Lender has
surrendered any Note for exchange in connection with the assignment and
has retained Commitments or Australian Dollar Sublimits hereunder, new
Notes to the order of the assigning Lender in an amount equal to the
Commitments or Australian Dollar Sublimits retained by it hereunder.
Such new Notes shall be dated the same date as the surrendered Notes
and be in substantially the form of Exhibit B-1 (Form of Term Loan
Note), Exhibit B-2 (Form of Dollar Revolving Credit Note) or Exhibit
B-3 (Form of Australian Dollar Revolving Credit Note), as applicable.
(g) In addition to the other assignment rights provided in
this Section 11.2, each Lender may do each of the following:
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(i) grant to a Special Purpose Vehicle the option to
make all or any part of any Loan that such Lender would otherwise be
required to make hereunder and the exercise of such option by any such
Special Purpose Vehicle and the making of Loans pursuant thereto shall
satisfy (once and to the extent that such Loans are made) the
obligation of such Lender to make such Loans thereunder; provided,
however, that (x) nothing herein shall constitute a commitment or an
offer to commit by such a Special Purpose Vehicle to make Loans
hereunder and no such Special Purpose Vehicle shall be liable for any
indemnity or other Obligation (other than the making of Loans for which
such Special Purpose Vehicle shall have exercised an option, and then
only in accordance with the relevant option agreement), (y) such
Lender's obligations under the Loan Documents shall remain unchanged,
such Lender shall remain responsible to the other parties for the
performance of its obligations under the terms of this Agreement and
shall remain the holder of the Obligations for all purposes hereunder
and (z) such Special Purpose Vehicle shall be able to comply with
Section 2.15 (Capital Adequacy); and
(ii) assign, as collateral or otherwise, any of its
rights under this Agreement, whether now owned or hereafter acquired
(including rights to payments of principal or interest on the Loans),
to (A) any Federal Reserve Bank (pursuant to Regulation A of the
Federal Reserve Board) or the Farm Credit Corporation or any Farm
Credit Bank (in each case under, as defined in and pursuant to the Farm
Credit Act of 1971, as amended, together with any successor or
replacement legislation), in each case without notice to or consent of
the Company or the Administrative Agent, (B) any holder of, or trustee
for the benefit of, the holders of such Lender's Securities without
consent of the Administrative Agent or the Company and (C) to any
Special Purpose Vehicle to which such Lender has granted an option
pursuant to clause (i) above without consent of the Administrative
Agent or the Company;
provided, however, that no such assignment or grant shall release such
Lender from any of its obligations hereunder except as expressly
provided in clause (i) above and except, in the case of a subsequent
foreclosure pursuant to an assignment as collateral, if such
foreclosure is made in compliance with the other provisions of this
Section 11.2 (Assignments and Participations) other than this clause
(g) or clause (h) below. Each party hereto acknowledges and agrees
that, prior to the date that is one year and one day after the payment
in full of all outstanding commercial paper or other senior debt of any
such Special Purpose Vehicle, such party shall not institute against,
or join any other Person in instituting against, any Special Purpose
Vehicle that has been granted an option pursuant to this clause (g) any
bankruptcy, reorganization, insolvency or liquidation proceeding (such
agreement shall survive the payment in full of the Obligations). The
terms of the designation of, or assignment to, such Special Purpose
Vehicle shall not restrict such Lender's ability to, or grant such
Special Purpose Vehicle the right to, consent to any amendment or
waiver to this Agreement or any other Loan Document or consent to the
departure by the Borrower from any provision of this Agreement or any
other Loan Document without the consent of such Special Purpose Vehicle
except to the extent any such consent would reduce the principal amount
of, or the rate of interest on, any Obligations, amend this clause (g)
or postpone any scheduled date of payment thereof; provided, however,
that the Administrative Agent, the Australian Agent, the Australian
Collateral Trustee and the other Lenders, Issuers and Secured Parties
shall continue to, and shall be entitled to continue to, deal solely
and directly with such Lender in connection with such Lender's
obligations under this Agreement. Each Special
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Purpose Vehicle shall be entitled to the benefits of Sections 2.15
(Capital Adequacy) and 2.16 (Taxes) and of Section 2.14(d) (Illegality)
as if it were such Lender; provided, however, that anything herein to
the contrary notwithstanding, no Borrower shall, at any time, be
obligated to make under Section 2.15 (Capital Adequacy), 2.16 (Taxes)
or 2.14(d) (Illegality) to any such Special Purpose Vehicle and any
such Lender any payment in excess of the amount such Borrower would
have been obligated to pay to such Lender in respect of such interest
if such Special Purpose Vehicle had not been assigned the rights of
such Lender hereunder.
(h) Each Lender may, without the consent of the Administrative
Agent or the Company, sell participations to one or more Persons in or
to all or a portion of its rights and obligations under the Loan
Documents (including all its rights and obligations with respect to the
Term Loans, the Revolving Loans, and Letters of Credit). The terms of
such participation shall not, in any event, require the participant's
consent to any amendments, waivers or other modifications of any
provision of any Loan Documents, the consent to any departure by any
Loan Party therefrom, or to the exercising or refraining from
exercising any powers or rights such Lender may have under or in
respect of the Loan Documents (including the right to enforce the
obligations of the Loan Parties), except if any such amendment, waiver
or other modification or consent would (i) reduce the amount, or
postpone any date fixed for, any amount (whether of principal, interest
or fees) payable to such participant under the Loan Documents, to which
such participant would otherwise be entitled under such participation
or (ii) result in the release of all or substantially all of the
Collateral other than in accordance with Section 10.7(b) (Concerning
the Collateral and the Collateral Documents). In the event of the sale
of any participation by any Lender, (w) such Lender's obligations under
the Loan Documents shall remain unchanged, (x) such Lender shall remain
solely responsible to the other parties for the performance of such
obligations, (y) such Lender shall remain the holder of such
Obligations for all purposes of this Agreement and (z) the Borrowers,
the Administrative Agent and the other Lenders shall continue to deal
solely and directly with such Lender in connection with such Lender's
rights and obligations under this Agreement. Each participant shall be
entitled to the benefits of Sections 2.15 (Capital Adequacy) and 2.16
(Taxes) and of Section 2.14(d) (Illegality) as if it were a Lender;
provided, however, that anything herein to the contrary
notwithstanding, no Borrower shall, at any time, be obligated to make
under Section 2.15 (Capital Adequacy), 2.16 (Taxes) or 2.14(d)
(Illegality) to the participants in the rights and obligations of any
Lender (together with such Lender) any payment in excess of the amount
such Borrower would have been obligated to pay to such Lender in
respect of such interest had such participation not been sold.
(i) Any Issuer may at any time assign its rights and
obligations hereunder to any other Lender by an instrument in form and
substance satisfactory to the Company, the Administrative Agent, such
Issuer and such Lender. If any Issuer ceases to be a Lender hereunder
by virtue of any assignment made pursuant to this Section 11.2, then,
as of the effective date of such cessation, such Issuer's obligations
to Issue Letters of Credit pursuant to Section 2.4 (Letters of Credit)
shall terminate and such Issuer shall be an Issuer hereunder only with
respect to outstanding Letters of Credit issued prior to such date.
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SECTION 11.3 COSTS AND EXPENSES
(a) The Borrowers jointly and severally agree to pay, or
reimburse the Administrative Agent, the Australian Agent and the
Australian Collateral Trustee upon demand for, all of the
Administrative Agent's, the Australian Agent's and the Australian
Collateral Trustee's reasonable internal and external audit, legal,
appraisal, valuation, filing, document duplication and reproduction and
investigation expenses and for all other reasonable out-of-pocket costs
and expenses of every type and nature (including, without limitation,
the reasonable fees, expenses and disbursements of the Administrative
Agent's counsel, Weil, Gotshal & ▇▇▇▇▇▇ LLP, local legal counsel,
auditors, accountants, appraisers, printers, insurance and
environmental advisors, and other consultants and agents) incurred by
the Administrative Agent, the Australian Collateral Trustee or the
Australian Agent in connection with any of the following: (i) the
Administrative Agent's or Australian Agent's audit and investigation of
the Company and its Subsidiaries in connection with the preparation,
negotiation or execution of any Loan Document or the Administrative
Agent's or Australian Agent's periodic audits of the Company or any of
its Subsidiaries, as the case may be, (ii) the preparation,
negotiation, execution or interpretation of this Agreement (including,
without limitation, the satisfaction or attempted satisfaction of any
condition set forth in Article III (Conditions To Loans And Letters Of
Credit)), any Loan Document or any proposal letter or commitment letter
issued in connection therewith, or the making of the Loans hereunder,
(iii) the creation, perfection or protection of the Liens under any
Loan Document (including any reasonable fees, disbursements and
expenses for local counsel in various jurisdictions), (iv) the ongoing
administration of this Agreement and the Loans, including consultation
with attorneys in connection therewith and with respect to the
Administrative Agent's, Australian Collateral Trustee's or Australian
Agent's rights and responsibilities hereunder and under the other Loan
Documents, (v) the protection, collection or enforcement of any
Obligation or the enforcement of any Loan Document, (vi) the
commencement, defense or intervention in any court proceeding relating
in any way to the Obligations, any Loan Party, any of the Company's
Subsidiaries, the Acquisition, the Related Documents, this Agreement or
any other Loan Document, (vii) the response to, and preparation for,
any subpoena or request for document production with which the
Administrative Agent, the Australian Collateral Trustee or the
Australian Agent is served or deposition or other proceeding in which
the Administrative Agent, the Australian Collateral Trustee or the
Australian Agent is called to testify, in each case, relating in any
way to the Obligations, any Loan Party, any of the Company's
Subsidiaries, the Acquisition, the Related Documents, this Agreement or
any other Loan Document or (viii) any amendment, consent, waiver,
assignment, restatement, or supplement to any Loan Document or the
preparation, negotiation, and execution of the same.
(b) The Borrowers further jointly and severally agree to pay
or reimburse each Agent and each of the Lenders and Issuers upon demand
for all out-of-pocket costs and expenses, including, without
limitation, reasonable attorneys' fees (including allocated costs of
internal counsel and costs of settlement), incurred by such Agent,
Lenders or Issuers in connection with any of the following: (i) in
enforcing any Loan Document or Obligation or any security therefor or
exercising or enforcing any other right or remedy available by reason
of an Event of Default, (ii) in connection with any refinancing or
restructuring of the credit arrangements provided hereunder in the
nature of a "work-out"
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or in any insolvency or bankruptcy proceeding, (iii) in commencing,
defending or intervening in any litigation or in filing a petition,
complaint, answer, motion or other pleadings in any legal proceeding
relating to the Obligations, any Loan Party, any of the Company's
Subsidiaries and related to or arising out of the transactions
contemplated hereby or by any other Loan Document or Related Document
or (iv) in taking any other action in or with respect to any suit or
proceeding (bankruptcy or otherwise) described in clause (i), (ii) or
(iii) above.
SECTION 11.4 INDEMNITIES
(a) The Borrowers jointly and severally agree to indemnify and
hold harmless each Agent, each Arranger, each Lender and each Issuer
and each of their respective Affiliates, and each of the directors,
officers, employees, agents, trustees, representatives, attorneys,
consultants and advisors of or to any of the foregoing (including those
retained in connection with the satisfaction or attempted satisfaction
of any condition set forth in Article III (Conditions To Loans And
Letters Of Credit)) (each such Person being an "Indemnitee") from and
against any and all claims, damages, liabilities, obligations, losses,
penalties, actions, judgments, suits, costs, disbursements and expenses
of any kind or nature (including fees, disbursements and expenses of
financial and legal advisors to any such Indemnitee) that may be
imposed on, incurred by or asserted against any such Indemnitee in
connection with or arising out of any investigation, litigation or
proceeding, whether or not any such Indemnitee is a party thereto,
whether direct, indirect, or consequential and whether based on any
federal, state or local law or other statutory regulation, securities
or commercial law or regulation, or under common law or in equity, or
on contract, tort or otherwise, in any manner relating to or arising
out of this Agreement, any other Loan Document, any Obligation, any
Letter of Credit, any Disclosure Document, any Related Document, or any
act, event or transaction related or attendant to any thereof, or the
use or intended use of the proceeds of the Loans or Letters of Credit
or in connection with any investigation of any potential matter covered
hereby (collectively, the "Indemnified Matters"); provided, however,
that the Borrowers shall not have any obligation under this Section
11.4 to an Indemnitee with respect to any Indemnified Matter (x) caused
by or resulting from the gross negligence or willful misconduct of that
Indemnitee, as determined by a court of competent jurisdiction in a
final non-appealable judgment or order and (y) arising out of, or in
connection with, the use by Persons not Indemnitees or parties to the
transactions contemplated hereby ("Unintended Recipients") of
information or other materials obtained by such Unintended Recipients
through electronic communications. Without limiting the foregoing,
"Indemnified Matters" include (i) all Environmental Liabilities and
Costs arising from or connected with the past, present or future
operations of the Company or any of its Subsidiaries involving any
property subject to a Collateral Document, or damage to real or
personal property or natural resources or harm or injury alleged to
have resulted from any Release of Contaminants on, upon or into such
property or any contiguous real estate, (ii) any costs or liabilities
incurred in connection with any Remedial Action concerning any Borrower
or any of its Subsidiaries, (iii) any costs or liabilities incurred in
connection with any Environmental Lien and (iv) any costs or
liabilities incurred in connection with any other matter under any
Environmental Law, including the Comprehensive Environmental Response,
Compensation and Liability Act of 1980 (49 U.S.C. Section 9601 et seq.)
and applicable state property transfer laws, whether, with respect to
any such matter, such Indemnitee is a mortgagee pursuant to any
leasehold mortgage, a mortgagee
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in possession, the successor in interest to the Company or any of its
Subsidiaries, or the owner, lessee or operator of any property of the
Company or any of its Subsidiaries by virtue of foreclosure, except,
with respect to those matters referred to in clauses (i), (ii), (iii)
and (iv) above, to the extent (x) incurred following foreclosure by the
Administrative Agent, the Australian Agent, the Australian Collateral
Trustee, any Lender or any Issuer, or the Administrative Agent, the
Australian Collateral Trustee, the Australian Agent, any Lender or any
Issuer having become the successor in interest to the Company or any of
its Subsidiaries and (y) attributable solely to acts of the
Administrative Agent, the Australian Collateral Trustee, the Australian
Agent, such Lender or such Issuer or any agent on behalf of the
Administrative Agent, the Australian Collateral Trustee, the Australian
Agent, such Lender or such Issuer.
(b) The Borrowers shall jointly and severally indemnify the
Administrative Agent, the Australian Collateral Trustee, the Australian
Agent, the Lenders and each Issuer for, and hold the Administrative
Agent, the Australian Collateral Trustee, the Australian Agent, the
Lenders and each Issuer harmless from and against, any and all claims
for brokerage commissions, fees and other compensation made against the
Administrative Agent, the Australian Collateral Trustee, the Australian
Agent, the Lenders and the Issuers for any broker, finder or consultant
with respect to any agreement, arrangement or understanding made by or
on behalf of any Loan Party or any of its Subsidiaries in connection
with the transactions contemplated by this Agreement.
(c) Each Borrower, at the request of any Indemnitee, shall
have the obligation to defend against such investigation, litigation or
proceeding or requested Remedial Action and the Borrower, in any event,
may participate in the defense thereof with legal counsel of the
Borrower's choice. In the event that such Indemnitee requests any
Borrower to defend against such investigation, litigation or proceeding
or requested Remedial Action, such Borrower shall promptly do so and
such Indemnitee shall have the right to have legal counsel of its
choice participate in such defense. No action taken by legal counsel
chosen by such Indemnitee in defending against any such investigation,
litigation or proceeding or requested Remedial Action, shall vitiate or
in any way impair the Borrowers' obligation and duty hereunder to
indemnify and hold harmless such Indemnitee.
(d) Each Borrower agrees that any indemnification or other
protection provided to any Indemnitee pursuant to this Agreement
(including pursuant to this Section 11.4) or any other Loan Document
shall (i) survive payment in full of the Obligations and (ii) inure to
the benefit of any Person that was at any time an Indemnitee under this
Agreement or any other Loan Document.
SECTION 11.5 LIMITATION OF LIABILITY
Each Borrower agrees that no Indemnitee shall have any
liability (whether in contract, tort or otherwise) to any Loan Party or any of
their respective Subsidiaries or any of their respective equity holders or
creditors for or in connection with the transactions contemplated hereby and in
the other Loan Documents and Related Documents, except for direct damages (as
opposed to special, indirect, consequential or punitive damages (including,
without limitation, any loss of profits, business or anticipated savings))
determined in a final non-appealable judgment by a court of competent
jurisdiction to have resulted from such Indemnitee's gross negligence or willful
misconduct. Each of Holdings and each Borrower hereby waives, releases
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and agrees (each for itself and on behalf of its Subsidiaries) not to ▇▇▇ upon
any such claim for any special, indirect, consequential or punitive damages,
whether or not accrued and whether or not known or suspected to exist in its
favor.
SECTION 11.6 RIGHT OF SET-OFF
Upon the occurrence and during the continuance of any Event of
Default each Lender and each Affiliate of a Lender is hereby authorized at any
time and from time to time, to the fullest extent permitted by law, to set off
and apply any and all deposits (general or special, time or demand, provisional
or final) at any time held and other indebtedness at any time owing by such
Lender or its Affiliates to or for the credit or the account of any Borrower
against any and all of the Obligations now or hereafter existing whether or not
such Lender shall have made any demand under this Agreement or any other Loan
Document and even though such Obligations may be unmatured. Each Lender agrees
promptly to notify the Company after any such set-off and application made by
such Lender or its Affiliates; provided, however, that the failure to give such
notice shall not affect the validity of such set-off and application. Each
Lender agrees that it shall not, without the express consent of the Requisite
Lenders (and that, it shall, to the extent lawfully entitled to do so, upon the
request of the Requisite Lenders) exercise its set-off rights under this Section
11.6 against any deposit accounts of the Loan Parties and their Subsidiaries
maintained with such Lender or any Affiliate thereof. The rights of each Lender
under this Section 11.6 are in addition to the other rights and remedies
(including other rights of set-off) that such Lender may have.
SECTION 11.7 SHARING OF PAYMENTS, ETC.
(a) If any Lender (directly or through an Affiliate thereof)
obtains any payment (whether voluntary, involuntary, through the
exercise of any right of set-off (including pursuant to Section 11.6
(Right of Set-off)) or otherwise) of the Loans owing to it, any
interest thereon, fees in respect thereof or amounts due pursuant to
Section 11.3 (Costs and Expenses), 11.4 (Indemnities) (other than
payments pursuant to Sections 2.14 (Special Provisions Governing
External Rate Loans), 2.15 (Capital Adequacy) or 2.16 (Taxes)) or
otherwise receives any Collateral in respect thereof (in each case,
whether voluntary, involuntary, through the exercise of any right of
set-off or otherwise (including pursuant to Section 11.6 (Right of
Set-off))) in excess of its Ratable Portion (or, in the case of
payments of Obligations owing under the Australian Dollar Subfacility,
its Australian Dollar Ratable Portion) of all payments of such
Obligations obtained by all the Lenders, such Lender (a "Purchasing
Lender") shall forthwith purchase from the other Lenders (each, a
"Selling Lender") such participations in their Loans or other
Obligations as shall be necessary to cause such Purchasing Lender to
share the excess payment ratably (or, in the case of payments of
Obligations owing under the Australian Dollar Subfacility, in
accordance with their Australian Dollar Ratable Portions) with each of
them.
(b) If all or any portion of any payment received by a
Purchasing Lender is thereafter recovered from such Purchasing Lender,
such purchase from each Selling Lender shall be rescinded and such
Selling Lender shall repay to the Purchasing Lender the purchase price
to the extent of such recovery together with an amount equal to such
Selling Lender's ratable share (according to the proportion of (i) the
amount of such Selling Lender's required repayment in relation to (ii)
the total amount so recovered from
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the Purchasing Lender) of any interest or other amount paid or payable
by the Purchasing Lender in respect of the total amount so recovered.
(c) Each Borrower agrees that any Purchasing Lender so
purchasing a participation from a Selling Lender pursuant to this
Section 11.7 may, to the fullest extent permitted by law, exercise all
its rights of payment (including the right of set-off) with respect to
such participation as fully as if such Lender were the direct creditor
of such Borrower in the amount of such participation.
SECTION 11.8 NOTICES, ETC.
All notices, demands, requests and other communications
provided for in this Agreement shall be given in writing, or by any
telecommunication device capable of creating a written record (including
electronic mail), and addressed to the party to be notified as follows:
(a) if to the Company or any Borrower:
SWIFT & COMPANY
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇,
Chief Financial Officer
Telecopy no: (▇▇▇) ▇▇▇-▇▇▇▇
E-Mail Address: ▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
(b) if to any Lender, any Documentation Agent or the
Syndication Agent, at its Domestic Lending Office;
(c) if to any Australian Dollar Lender, at its Australian
Lending Office;
(d) if to any Issuer, at its Applicable Lending Office; and
(e) if to the Australian Agent:
CITIBANK, N.A. (SYDNEY BRANCH)
▇▇▇▇▇ ▇▇
▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇
Telecopy no: 011-612-8225-5111
E-Mail Address: ▇▇▇▇▇▇▇.▇▇▇▇@▇▇▇▇.▇▇▇.▇▇
with a copy to the Administrative Agent (at the
address below);
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(f) if to the Australian Collateral Trustee:
CITISECURITIES LIMITED
▇▇▇▇▇ ▇▇
▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇
Telecopy no: 011-612-8225-5111
E-Mail Address: ▇▇▇▇▇.▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇
(g) if to the Administrative Agent or the Swing Loan Lender:
CITICORP USA, INC.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Telecopy no: (▇▇▇) ▇▇▇-▇▇▇▇
E-Mail Address: ▇▇▇▇▇▇.▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇
with a copy to:
WEIL, GOTSHAL & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telecopy no: (▇▇▇) ▇▇▇-▇▇▇▇
E-Mail Address: ▇▇▇▇▇▇.▇▇▇▇▇@▇▇▇▇.▇▇▇
or at such other address in the United States as shall be notified in writing
(x) in the case of the Borrowers, the Administrative Agent, the Australian Agent
and the Australian Collateral Trustee and the Swing Loan Lender, to the other
parties and (y) in the case of all other parties, to the Company and the
Administrative Agent. All such notices and communications shall be effective
upon personal delivery (if delivered by hand, including any overnight courier
service), when deposited in the mails (if sent by mail), or when properly
transmitted (if sent by a telecommunications device or through the Internet);
provided, however, that notices and communications to the Administrative Agent
or the Australian Agent pursuant to Article II (The Facilities) or X (The
Administrative Agent; Other Agents) shall not be effective until received by the
Administrative Agent or the Australian Agent. Each Borrower agrees that notice
to the Company shall be sufficient notice to each Borrower.
SECTION 11.9 NO WAIVER; REMEDIES
No failure on the part of any Lender, Issuer or Agent to
exercise, and no delay in exercising, any right hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise of any such right
preclude any other or further exercise thereof or the exercise of any other
right. The remedies herein provided are cumulative and not exclusive of any
remedies provided by law.
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SECTION 11.10 BINDING EFFECT
This Agreement shall become effective when it shall have been
executed by each Borrower, the Administrative Agent, the Australian Agent and
the Australian Collateral Trustee and when the Administrative Agent shall have
been notified by each other Agent and each Lender and Issuer that such Agent,
Lender or Issuer has executed this Agreement and thereafter shall be binding
upon and inure to the benefit of each Borrower, Agent, Lender and Issuer and, in
each case, their respective successors and assigns; provided, however, that no
Borrower shall have the right to assign its rights or obligations hereunder or
any interest herein without the prior written consent of the Lenders.
SECTION 11.11 WAIVER OF JUDICIAL BOND
To the fullest extent permitted by applicable law, each
Borrower waives the requirement to post any bond that otherwise may be required
of any Secured Party in connection with any judicial proceeding to enforce such
Secured 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
Agreement, the Notes (if any), the Australian Intercompany Credit Agreement and
the other Loan Documents to which it is a party.
SECTION 11.12 WAIVER OF IMMUNITY
To the extent that any Australian Borrower has, or hereafter
may be entitled to claim or may acquire, for itself, any Collateral or other
assets of the Loan Parties, 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, such Borrower hereby waives such immunity in respect of its
obligations hereunder and under the Notes (if any), the Australian Intercompany
Credit Agreement and any other Loan Document to the fullest extent permitted by
applicable Requirements of Law and, without limiting the generality of the
foregoing, agrees that the waivers set forth in this Section 11.12 (Waiver of
Immunity) 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.
SECTION 11.13 CURRENCY OF PAYMENT
(a) Each payment owing by any Borrower hereunder shall be made
in the relevant currency specified herein or, if not specified herein,
specified in any other Loan Document executed by the Administrative
Agent or the Australian Agent (the "Currency of Payment") at the place
specified herein (such requirement are of the essence of this
Agreement). If, for the purpose 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 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. The obligations in respect of any sum due
hereunder to any Secured Party shall,
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notwithstanding any adjudication expressed in a currency other than the
Currency of Payment, be discharged only to the extent that, on the
Business Day following receipt by such Secured Party of any sum
adjudged to be so due in such other currency, such Secured Party may,
in accordance with normal banking procedures, purchase the Currency of
Payment with such other currency. Each Borrower agrees that (a) if the
amount of the Currency of Payment so purchased is less than the sum
originally due to such Secured Party in the Currency of Payment, as a
separate obligation and notwithstanding the result of any such
adjudication, such Borrower shall immediately pay the shortfall (in the
Currency of Payment) to such Secured Party and (b) if the amount of the
Currency of Payment so purchased exceeds the sum originally due to such
Secured Party, such Secured Party shall promptly pay the excess over to
such Borrower in the currency and to the extent actually received.
(b) The Obligations owing to any Secured Party hereunder
shall, notwithstanding any payment in a currency other than the
Currency of Payment and notwithstanding any deemed conversion or
replacement hereunder, be discharged only to the extent that, on the
Business Day following receipt by such Secured Party of any amount in
such other currency (including, in the case of any amounts held in a
Cash Collateral Account, following the date of application of such
amounts to repay the Obligations), such Secured Party may, in
accordance with normal banking procedures, purchase the Currency of
Payment with such other currency. Each Borrower agrees that (i) if the
amount of the Currency of Payment so purchased is less than the sum
originally due to such Secured Party in the Currency of Payment, as a
separate obligation and notwithstanding the result of any such
adjudication, such Borrower shall immediately pay the shortfall (in the
Currency of Payment) to such Secured Party and (ii) if the amount of
the Currency of Payment so purchased exceeds the sum originally due to
such Secured Party, such Secured Party shall promptly pay the excess
over to such Borrower in the currency and to the extent actually
received.
SECTION 11.14 GOVERNING LAW
This Agreement and the rights and obligations of the parties
hereto shall be governed by, and construed and interpreted in accordance with,
the law of the State of New York.
SECTION 11.15 SUBMISSION TO JURISDICTION; SERVICE OF PROCESS
(a) Any legal action or proceeding with respect to this
Agreement or any other Loan Document may be brought in the courts of
the State of New York or of the United States for the Southern District
of New York, and, by execution and delivery of this Agreement, each
Borrower 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 Australian Borrower hereby irrevocably designates,
appoints and empowers CT Corporation System (telephone number:
212-894-8600) (telecopy number: 212-894-8690) (address: ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇.▇. 10011) (the "Process Agent"), in the case of any
suit, action or proceeding brought in the United States as its
designee, appointee and agent to receive, accept and acknowledge for
and on its behalf,
167
CREDIT AGREEMENT
SWIFT & COMPANY
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 Agreement or any
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 Australian Borrower in care of the Process Agent at the Process
Agent's above address, and such Australian Borrower hereby irrevocably
authorizes and directs the Process Agent to accept such service on its
behalf. As an alternative method of service, each Australian Borrower
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
Australian Borrower at its address specified in Section 11.8 (Notices,
Etc.). Each Australian Borrower 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) The Company hereby irrevocably consents to the service of
any and all legal process, summons, notices and documents in any suit,
action or proceeding brought in the United States arising out of or in
connection with this Agreement or any other Loan Document by the
mailing (by registered or certified mail, postage prepaid) or
delivering of a copy of such process to the Company at its address
specified in Section 11.8 (Notices, Etc.). The Company 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.
(d) Nothing contained in this Section 11.15 shall affect the
right of any Agent, Lender, Issuer or other Secured Party to serve
process in any other manner permitted by law or commence legal
proceedings or otherwise proceed against any Borrower or any other Loan
Party in any other jurisdiction.
SECTION 11.16 WAIVER OF JURY TRIAL
EACH AGENT, LENDER, ISSUER AND BORROWER IRREVOCABLY WAIVES
TRIAL BY JURY IN ANY ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT.
SECTION 11.17 MARSHALING; PAYMENTS SET ASIDE
None of the Administrative Agent, Australian Agent, Australian
Collateral Trustee, any Lender or any Issuer shall be under any obligation to
marshal any assets in favor of any Borrower or any other party or against or in
payment of any or all of the Obligations. To the extent that any Borrower makes
a payment or payments to any Agent, Lender or Issuer or any such Person receives
payment from the proceeds of the Collateral or exercise their rights of setoff,
and such payment or payments or the proceeds of such enforcement or setoff or
any part thereof are subsequently invalidated, declared to be fraudulent or
preferential, set aside or required to be repaid to a trustee, receiver or any
other party, then to the extent of such recovery, the obligation or part thereof
originally intended to be satisfied, and all Liens, right and remedies therefor,
shall be revived and continued in full force and effect as if such payment had
not been made or such enforcement or setoff had not occurred.
168
CREDIT AGREEMENT
SWIFT & COMPANY
SECTION 11.18 SECTION TITLES
The section titles contained in this Agreement 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. Any reference to the number of a clause, sub-clause or subsection
hereof immediately followed by a reference in parenthesis to the title of the
Section containing such clause, sub-clause or subsection is a reference to such
clause, sub-clause or subsection and not to the entire Section; provided,
however, that, in case of direct conflict between the reference to the title and
the reference to the number of such Section, the reference to the title shall
govern absent manifest error. If any reference to the number of a Section (but
not to any clause, sub-clause or subsection thereof) is followed immediately by
a reference in parenthesis to the title of a Section, the title reference shall
govern in case of direct conflict absent manifest error.
SECTION 11.19 EXECUTION IN COUNTERPARTS
This Agreement 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
signature page of this Agreement by facsimile transmission shall be as effective
as delivery of a manually executed counterpart hereof. A set of the copies of
this Agreement signed by all parties shall be lodged with the Company and the
Administrative Agent.
SECTION 11.20 ENTIRE AGREEMENT
This Agreement, together with all of the other Loan Documents
and all certificates and documents delivered hereunder or thereunder, embodies
the entire agreement of the parties and supersedes all prior agreements and
understandings relating to the subject matter hereof. In the event of any
conflict between the terms of this Agreement and any other Loan Document, the
terms of this Agreement shall govern.
SECTION 11.21 CONFIDENTIALITY
Each Lender and each Agent agree to keep information obtained
by it pursuant hereto and the other Loan Documents confidential in accordance
with such Lender's or such Agent's, as the case may be, customary practices and
agrees that it shall only use such information in connection with the
transactions contemplated by this Agreement and not disclose any such
information other than (a) to such Lender's or such Agent's, as the case may be,
employees, representatives and agents that are or are expected to be involved in
the evaluation of such information in connection with the transactions
contemplated by this Agreement and are advised of the confidential nature of
such information, (b) to the extent such information presently is or hereafter
becomes available to such Lender or such Agent, as the case may be, on a
non-confidential basis from a source other than the Company, (c) to the extent
disclosure is required by law, regulation or judicial order or requested or
required by bank regulators or auditors or (d) to current or prospective
assignees, participants, Special Purpose Vehicles grantees of any option
described in Section 11.2(g) (Assignments and Participations) and contractual
counterparties in any Hedging Contract permitted hereunder and to legal advisors
of any of them advising them in the transaction described in this clause (d), in
each case and to the extent such assignees, participants, grantees and
counterparties agree to be bound by the provisions of this Section 11.21.
[SIGNATURE PAGES FOLLOW]
169
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
SWIFT & COMPANY,
as Borrower
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: President & CEO
S&C AUSTRALIA HOLDCO PTY, LTD.,
as Borrower
By:
---------------------------------
Name:
Title:
AUSTRALIA MEAT HOLDINGS PTY, LIMITED,
as Borrower
By:
---------------------------------
Name:
Title:
S&C HOLDCO 3 INC.,
as Holdings
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: President & CEO
[SIGNATURE PAGE TO SWIFT & COMPANY CREDIT AGREEMENT]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
SWIFT & COMPANY,
as Borrower
By:
---------------------------------
Name:
Title:
S&C AUSTRALIA HOLDCO PTY, LTD.,
as Borrower
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Attorney
AUSTRALIA MEAT HOLDINGS PTY, LIMITED,
as Borrower
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Attorney
S&C HOLDCO 3 INC.,
as Holdings
By:
---------------------------------
Name:
Title:
[SIGNATURE PAGE TO SWIFT & COMPANY CREDIT AGREEMENT]
CITICORP USA, INC.,
as Administrative Agent
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Director
CITIBANK, N.A.,
as Issuer
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Director
CITICORP NORTH AMERICA, INC.,
` as Swing Loan Lender and Lender
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Director
[SIGNATURE PAGE TO SWIFT & COMPANY CREDIT AGREEMENT]
▇▇▇▇▇▇▇▇, N.A. (SYDNEY BRANCH)
as Australian Dollar Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
--------------------------------- ---------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇▇▇▇
Title: Attorney for Citibank, N.A. Title: Attorney for Citibank, N.A.
CITISECURITIES LIMITED
as Australian Collateral Trustee
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
--------------------------------- ---------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇▇▇▇
Title: Attorney for Title: Attorney for
Citisecurities Limited Citisecurities Limited
JPMORGAN CHASE BANK
By: /s/ ▇.▇. ▇▇▇▇▇▇▇▇
---------------------------------------
Name: ▇.▇. ▇▇▇▇▇▇▇▇
Title: Vice President
[SIGNATURE PAGE TO SWIFT & COMPANY CREDIT AGREEMENT]
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇
Title: Duly Authorized Signatory
U.S. BANK NATIONAL ASSOCIATION,
as Documentation Agent and Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A., "RABOBANK,
INTERNATIONAL", NEW YORK BRANCH
as Syndication Agent and Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Director
By: /s/ W. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
Name: W. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Managing Director
Senior Credit Officer
AGFIRST FARM CREDIT BANK
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
[SIGNATURE PAGE TO SWIFT & COMPANY CREDIT AGREEMENT]
AGSTAR FINANCIAL SERVICES, PCA
dba FCS Commercial Finance Group
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
[SIGNATURE PAGE TO SWIFT & COMPANY CREDIT AGREEMENT]
BNP PARIBAS
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Director
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Central Region Manager
[SIGNATURE PAGE TO SWIFT & COMPANY CREDIT AGREEMENT]
CONGRESS FINANCIAL CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
[SIGNATURE PAGE TO SWIFT & COMPANY CREDIT AGREEMENT]
COBANK, ACB
By: /s/ S. ▇▇▇▇▇▇▇ ▇▇▇▇
---------------------------------
Name: S. ▇▇▇▇▇▇▇ ▇▇▇▇
Title: Vice President
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
E-Mail:▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇
[SIGNATURE PAGE TO SWIFT & COMPANY CREDIT AGREEMENT]
FARM CREDIT SERVICES OF AMERICA, PCA
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
[SIGNATURE PAGE TO SWIFT & COMPANY CREDIT AGREEMENT]
FARM CREDIT SERVICES OF MID-AMERICA, PCA
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Agribusiness Account Executive
[SIGNATURE PAGE TO SWIFT & COMPANY CREDIT AGREEMENT]
FLEET CAPITAL CORPORATION
By: /s/ ▇▇▇▇▇▇▇ KERNEKLION
---------------------------------
Name: ▇▇▇▇▇▇▇ Kerneklion
Title: Vice President
[SIGNATURE PAGE TO SWIFT & COMPANY CREDIT AGREEMENT]
GMAC BUSINESS CREDIT, LLC
By: /s/ ▇▇▇▇▇▇ GRIZCO
---------------------------------
Name: ▇▇▇▇▇▇ Grizco
Title: Director
[SIGNATURE PAGE TO SWIFT & COMPANY CREDIT AGREEMENT]
▇▇▇▇▇▇ TRUST & SAVINGS BANK
[NAME OF LENDER]
BY: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Managing Director
[SIGNATURE PAGE TO SWIFT & COMPANY CREDIT AGREEMENT]
ING CAPITAL LLC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Managing Director
[SIGNATURE PAGE TO SWIFT & COMPANY CREDIT AGREEMENT]
LASALLE BANK NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇ ▇. CABLE
---------------------------------
Name: ▇▇▇▇▇ ▇. Cable
Title: Assistant Vice President
[SIGNATURE PAGE TO SWIFT & COMPANY CREDIT AGREEMENT]
▇▇▇▇▇▇▇ ▇▇▇▇▇ CAPITAL, A DIVISION
OF ▇▇▇▇▇▇▇ ▇▇▇▇▇ BUSINESS
FINANCIAL SERVICES INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Director
[SIGNATURE PAGE TO SWIFT & COMPANY CREDIT AGREEMENT]
THE PROVIDENT BANK
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇▇
Title: Vice President
[SIGNATURE PAGE TO SWIFT & COMPANY CREDIT AGREEMENT]
SOCIETE GENERALE
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇
Title: Managing Director
[SIGNATURE PAGE TO SWIFT & COMPANY CREDIT AGREEMENT]