FIRST AMENDMENT TO ACQUISITION DOCUMENTS made and entered into as of July
3, 2002, by and among ConAgra Foods, Inc., a Delaware corporation ("ConAgra"),
HMTF Rawhide, L.P., a Delaware limited partnership ("Acquisition LP"), and S&C
Holdco, Inc., a Delaware corporation ("Holdco").
RECITALS:
WHEREAS, the parties hereto are parties to the Agreement dated May 20,
2002 (the "Acquisition Agreement");
WHEREAS, the Acquisition Agreement contemplates the execution at the
Closing of various agreements attached as Exhibits to the Acquisition Agreement
(the "Ancillary Documents" and together with the Acquisition Agreement, the
"Acquisition Documents");
WHEREAS, Section 2.1.9 of the Acquisition Agreement currently provides
that prior to Closing Holdco shall change its name to "Swift & Company;"
WHEREAS, certain Ancillary Documents to be executed at the Closing have
been prepared in a manner that anticipates the name change contemplated by
Section 2.1.9 of the Acquisition Agreement and thereby reflect that at the
Closing Holdco's name shall be "Swift & Company;"
WHEREAS, the parties desire to amend Section 2.1.9 of the Acquisition
Agreement and the Ancillary Documents to provide and reflect that prior to the
Closing Holdco's name shall be changed to "Swift Foods Company" rather than
"Swift & Company;"
WHEREAS, ConAgra has caused S&C Holdco 3, Inc. to incorporate Swift Meats
Holding Company (defined as "U.S. Acquisition Co." in the Acquisition Agreement)
pursuant to Section 2.1.4 of the Acquisition Agreement;
WHEREAS, U.S. Acquisition Co. is a party to certain of the Ancillary
Documents to be executed at the Closing; and
WHEREAS, the parties desire to amend the Acquisition Agreement and the
Ancillary Documents to provide and reflect that prior to the Closing U.S.
Acquisition Co.'s name shall be changed to "Swift & Company."
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and intending to be legally bound,
the parties hereto agree as follows:
Section 1. Corporate Name Change of Holdco in Acquisition Agreement.
Section 2.1.9 of the Acquisition Agreement shall be deleted in its entirety and
the following revised Section 2.1.9 shall be deemed inserted in place thereof as
of the date hereof:
2.1.9 ConAgra shall use its reasonable efforts to cause
Holdco to change its corporate name to "Swift Foods Company" in its
jurisdiction of incorporation and each other jurisdiction in which it is
qualified to do business as set forth on Schedule 7.1.
Section 2. Corporate Name Change of Holdco in Ancillary Documents. At or
prior to the Closing each Ancillary Document that is to be executed at the
Closing that currently provides or reflects that Holdco's name is to be changed
to Swift & Company by or before and as of the Closing shall be amended as
necessary to reflect that Holdco's name shall be changed to "Swift Foods
Company."
Section 3. Corporate Name Change of U.S. Acquisition Co. in Acquisition
Agreement. The following new Section 2.1.30 shall be deemed inserted in Article
2 of the Acquisition Agreement as of the date hereof:
2.1.30 ConAgra shall use its reasonable efforts to cause
U.S. Acquisition Co. to change its corporate name to "Swift & Company" in
its jurisdiction of incorporation and each other jurisdiction in which it is
qualified to do business as set forth on Schedule 7.1.
Section 4. Corporate Name Change of U.S. Acquisition Co. in Ancillary
Documents. At or prior to the Closing each Ancillary Document that is to be
executed at the Closing that currently reflects U.S. Acquisition Co.'s name as
"Swift Meats Holding Company" shall be amended as necessary to reflect that U.S.
Acquisition Co.'s name shall be changed to "Swift & Company."
Section 5. Defined Terms. Capitalized terms used but not otherwise defined
herein shall have the respective meanings ascribed to such terms in the
Acquisition Agreement.
Section 6. Acquisition Agreement Amendment Provision. This First Amendment
to Acquisition Documents is executed, delivered and made effective in accordance
with Section 15.2 of the Acquisition Agreement.
Section 7. Effect on Acquisition Documents. Except as specifically amended
hereby, all terms, provisions and conditions of the Acquisition Documents shall
remain in full force and effect.
Section 8. Amendments. This First Amendment to Acquisition Documents shall
not be amended except in a writing signed by all the parties hereto.
Section 9. Counterparts. This First Amendment to Acquisition Documents may
be executed and delivered (including by facsimile transmission) in one or more
counterparts, each of which shall be regarded as an original and all of which
shall constitute one and the same instrument.
Section 10. Applicable Law. This First Amendment to Acquisition Documents
and the legal relations among the parties hereto shall be governed by and
construed in accordance with the laws of the State of Delaware applicable to
contracts made and performed in Delaware.
Section 11. Consent to Jurisdiction. THE PARTIES HERETO HEREBY IRREVOCABLY
SUBMIT TO THE EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR DELAWARE
STATE COURT SITTING IN WILMINGTON, DELAWARE IN ANY ACTION OR PROCEEDING ARISING
OUT OF OR RELATING TO THIS AGREEMENT AND EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING SHALL
BE HEARD AND DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION
IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR
PROCEEDING BROUGHT IN SUCH COURT OR THAT SUCH COURT IS AN INCONVENIENT FORUM.
The undersigned parties have executed this First Amendment to Acquisition
Documents as of the date first set forth above.
ConAgra Foods, Inc.
By: /s/ Dwight J. Goslee
__________________________
Dwight J. Goslee,
Executive Vice President, Operations Control and
Development
HMTF Rawhide, L.P.
By: HMTF RW, L.L.C., its General Partner
By: Hicks, Muse, Tate & Furst Equity Fund V, L.P.,
its sole member
By: HM5/GP LLC, its General Partner
By: /s/ Edward Herring
__________________________
Edward Herring, Vice President
S&C Holdco, Inc.
By: /s/ Dwight J. Goslee
______________________________
Dwight J. Goslee, President
SECOND AMENDMENT TO ACQUISITION AGREEMENT ("Second Amendment") made and
entered into as of September 3, 2002, by and among ConAgra Foods, Inc., a
Delaware corporation ("ConAgra"), HMTF Rawhide, L.P., a Delaware limited
partnership ("Acquisition LP"), and Swift Foods Company, f/k/a S&C Holdco, Inc.,
a Delaware corporation ("Holdco").
RECITALS:
WHEREAS, the parties hereto are parties to the Agreement dated May 20,
2002, as amended by the First Amendment to Acquisition Documents dated July 3,
2002 (the "Acquisition Agreement");
WHEREAS, the parties desire to further amend the Acquisition Agreement
to provide for and reflect revised terms for financing certain consideration to
be provided pursuant to the Acquisition Agreement and certain other matters;
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and intending to be legally bound,
the parties hereto agree as follows:
Section 1. Senior Subordinated Notes.
(a) The Acquisition Agreement is hereby amended to reflect that, on the
Closing Date, ConAgra hereby agrees to purchase from U.S. Acquisition Co. Senior
Subordinated Notes (as defined in the Revised Senior Bank Commitment Letter (as
hereinafter defined)) in the principal amount of One Hundred Fifty Million
United States Dollars ($150,000,000) at a purchase price equal to the principal
amount thereof and otherwise on the terms and in the manner described in Annex A
to the Revised Engagement Letter, the Revised Senior Bank Commitment Letter and
the Revised Fee Letter (each as hereinafter defined).
(b) At the Closing, Acquisition LP shall pay to ConAgra a fee equal to 2.5%
of the principal amount of the Senior Subordinated Notes upon ConAgra's purchase
of the Senior Subordinated Notes as contemplated by Section 1(a) above.
(c) To the extent the terms of the Acquisition Agreement are inconsistent
with the terms set forth in this Section 1, this Section 1 shall control and the
terms of the Acquisition Agreement shall be deemed amended mutatis mutandis to
reflect this Section 1.
Section 2. Issuance of Management Group Shares.
(d) The parties agree that, at or within 10 business days after the Closing
Date, Holdco shall issue up to four million shares (the actual number of shares
issued being referred to collectively as the "Management Group Shares") of
Holdco Common Stock to the Management Group (as hereinafter defined) for One
United States Dollar ($1.00) per share. ConAgra agrees that it shall contribute
to the capital of Holdco a number of shares of Holdco Common Stock owned by
ConAgra equal to the number of Management Group Shares. Holdco shall pay to
ConAgra in cash on the Closing Date (or such other date that the Management
Group Shares are issued) the aggregate proceeds received from the issuance of
the Management Group Shares as part of the cash purchase price paid pursuant to
Section 2.2.6(viii) of the Acquisition Agreement.
(e) "Management Group" shall mean any current member of management of any
Acquiring Company or Acquired Company that is designated by Acquisition LP, in
its sole discretion, to receive the Management Group Shares.
(f) ConAgra and Acquisition LP shall cause the appropriate revisions to be
made to the Stockholders Agreement attached as Exhibit 4.1.1(iii) to the
Acquisition Agreement (the "Stockholders Agreement") to (i) include the members
of the Management Group as parties to the Stockholders Agreement, (ii) provide
tag-along rights with respect to the Management Group Shares to the benefit of
the Management Group, (iii) provide drag-along rights with respect to the
Management Group Shares to the benefit of Acquisition LP, (iv) provide
repurchase rights with respect to the Management Group Shares upon the
occurrence of certain events, (v) provide restrictions on the transfer of the
Management Group Shares, (vi) provide rights of first refusal with respect to
the Management Group Shares and (vii) provide such other terms and provisions
with respect to the Management Group and the Management Group Shares as may be
appropriate.
Section 3. Revised Senior Bank Commitment Letter. The Senior Bank
Commitment Letter and the Bridge Commitment Letter attached to the Acquisition
Agreement as Exhibit 8.5(a) shall be deleted in their entirety and replaced with
the amended and restated senior credit facilities commitment letter dated
September 3, 2002, from Citicorp North America, Inc., Salomon Smith Barney Inc.,
JPMorgan Chase Bank and J.P. Morgan Securities Inc. to Acquisition LP, a copy of
which is attached hereto as Annex A (the "Revised Senior Bank Commitment
Letter"). All references to the Senior Bank Commitment Letter in the Acquisition
Agreement shall be deemed to refer to the Revised Senior Bank Commitment Letter.
Section 4. Revised Engagement Letter. The Engagement Letter attached to the
Acquisition Agreement as Exhibit 8.5(b) shall be deleted in its entirety and
replaced with the revised engagement letter dated September 3, 2002, from
Salomon Smith Barney Inc. and J.P. Morgan Securities Inc. to Acquisition LP, a
copy of which is attached hereto as Annex B (the "Revised Engagement Letter").
All references to the Engagement Letter in the Acquisition Agreement shall be
deemed to refer to the Revised Engagement Letter.
Section 5. Revised Fee Letter. The Fee Letter referenced in the Acquisition
Agreement shall be deemed replaced in its entirety with the amended and restated
fee letter dated September 3, 2002, from Citicorp North America, Inc., Salomon
Smith Barney Inc., JPMorgan Chase Bank and J.P. Morgan Securities Inc. to
Acquisition LP, a copy of which is attached hereto as Annex C (the "Revised Fee
Letter"). All references to the Fee Letter in the Acquisition Agreement shall be
deemed to refer to the Revised Fee Letter.
Section 6. Termination Date. Section 11.1(b) of the Acquisition Agreement
is hereby amended and restated as follows:
"(a) by either ConAgra, on the one hand, or Acquisition LP, on
the other hand, if the Closing shall not have occurred on or before September
30, 2002 (the "Termination Date")."
Section 7. ConAgra's Right to Terminate. Article 7 of the Acquisition
Agreement is hereby amended by adding a new Section 7.26 thereto, which shall
read as follows:
"Section 7.26. ConAgra's Right to Terminate. As of the date of
this Second Amendment, ConAgra does not have Knowledge of any breaches by
Acquisition LP that give ConAgra (with or without lapse of time or the giving of
notice or both) the right to terminate the Acquisition Agreement pursuant to
Section 11.1(e)."
Section 8. Acquisition LP's Right to Terminate. Article 8 of the
Acquisition Agreement is hereby amended by adding a new Section 8.7 thereto
which shall read as follows:
"Section 8.7. Acquisition LP's Right to Terminate. As of the
date of this Second Amendment, Acquisition LP does not have knowledge of any
breaches by ConAgra that give Acquisition LP (with or without lapse of time or
the giving of notice or both) the right to terminate the Acquisition Agreement
pursuant to Section 11.1.(d)."
Section 9. Definition of Transaction Documents. The term "Transaction
Documents" in the Acquisition Agreement shall be deemed to include, without
limitation, the tax sharing agreement in a form attached hereto as Annex D (the
"Tax Sharing Agreement") which shall be executed by the parties thereto at the
Closing.
Section 10. Bridge Commitment Letter. The Acquisition Agreement is
hereby amended such that all references to the "Bridge Commitment Letter," the
"Senior Bridge Facility" and the bridge financing contemplated by the Bridge
Commitment Letter contained in the Acquisition Agreement, as well as any and all
provisions that are related to or affected by the foregoing, are deleted in
their entirety.
Section 11. Definition of Facility. The Acquisition Agreement is hereby
amended such that all references to the term "Facilities" shall be revised to
read "Senior Secured Credit Facilities" (as such term is defined in the Revised
Senior Bank Commitment Letter).
Section 12. Conditions Precedent to Obligations. Section 10.1(e) of the
Acquisition Agreement is hereby amended and restated as follows:
"(e) Financing. As contemplated by Article 2, (x) U.S. Acquisition Co. and
Australia Acquisition Co. shall have received the proceeds of the financings
contemplated by the Revised Senior Bank Commitment Letter (or other alternate
financing, if any, obtained by Acquisition LP as contemplated by Section
9.2.3(a)), (y) U.S. Acquisition Co. shall have consummated the Rule 144A
offering of the debt securities as contemplated by the Engagement Letter and (z)
ConAgra shall have purchased $150,000,000 of Senior Subordinated Notes as
contemplated by Section 1 of the Second Amendment to Acquisition Agreement by
and among the parties thereto."
Section 13. Senior Notes; Senior Subordinated Notes.
(a) Section 2.2.6(iv) of the Acquisition Agreement is hereby amended
and restated as follows:
"(iv) The parties shall cause U.S. Acquisition Co. to consummate the
sale of senior notes in the amount of Two Hundred Fifty Million United
States Dollars ($250,000,000) as contemplated by the Engagement Letter and
to consummate the sale of the Senior Subordinated Notes to ConAgra in the
amount of One Hundred Fifty Million United States Dollars ($150,000,000) as
contemplated by Section 1 of the Second Amendment to Acquisition Agreement
by and among the parties thereto;"
(b) Clause (x) of Section 9.2.3(a) of the Acquisition Agreement is
hereby amended and restated as follows:
"(x) U.S. Acquisition Co. to consummate by the Termination
Date (i) the senior secured financing contemplated by the Revised Senior Bank
Commitment Letter, (ii) the sale of senior notes in an aggregate principal
amount of Two Hundred Fifty Million United States Dollars ($250,000,000), and
(iii) the purchase by ConAgra of $150,000,000 of Senior Subordinated Notes as
contemplated by Section 1 of the Second Amendment to Acquisition Agreement by
and among the parties thereto and"
(c) The first sentence of Section 9.2.3(b) of the Acquisition
Agreement is hereby amended and restated as follows:
"If Acquisition LP requests, ConAgra shall reasonably
cooperate, shall cause Holdco and each Acquired Company to reasonably cooperate,
and shall instruct its independent accountants to reasonably cooperate, at any
time prior to the Closing, and after the Closing, with respect to (i) the senior
secured financing contemplated by the Revised Senior Bank Commitment Letter,
(ii) the sale of senior notes as contemplated by the Engagement Letter in an
aggregate principal amount of Two Hundred Fifty Million United States Dollars
($250,000,000), (iii) the purchase by ConAgra of $150,000,000 of Senior
Subordinated Notes as contemplated by Section 1 of the Second Amendment to
Acquisition Agreement by and among the parties thereto, (iv) the Australian
financings contemplated by the Revised Senior Bank Commitment Letter, (v) any
registration statement filed following the Closing with respect to the
securities issued in connection with the consummation of the transactions
contemplated by the Acquisition Agreement, and (vi) any registration statement
filed following the Closing relating to a Registered Exchange Offer (as
described in the Senior Bank Commitment Letter) (including providing reasonable
assistance in the preparation of one or more offering circulars, private
placement memoranda, prospectuses, registration statements or other offering
documents or marketing materials relating to a debt financing or any other
filings that may be made with the U.S. Securities and Exchange Commission in
connection therewith)."
Section 14. Closing. Section 4.1 of the Acquisition Agreement is
hereby amended and restated as follows:
"4.1 Closing. Subject to the terms and conditions contained in
this Agreement, the closing of the transactions contemplated hereby (the
"Closing") will occur at the offices of Weil, Gotshal & Manges LLP, 767 Fifth
Avenue, New York, New York 10153, on the earlier of (i) the Termination Date,
and (ii) the second business day after the conditions set forth in Section 10
(other than those to be fulfilled at the Closing) have been satisfied or at such
other date and place as the parties hereto may mutually agree (the date on which
the Closing actually occurs being referred to herein as the "Closing Date"). All
actions contemplated to occur at the Closing pursuant to this Agreement shall be
mutually interdependent and, notwithstanding any other provision of this
Agreement, no such action shall become effective or shall be deemed to have
occurred unless all of the other actions contemplated to occur at the Closing
pursuant to this Agreement shall also have occurred. The Closing shall be
effective as of the time on the Closing Date that all actions contemplated to
occur at the Closing pursuant to this Agreement have been completed (the
"Effective Time")."
Section 15. Transition Services Agreement. ConAgra and Acquisition LP shall
cause the form of Transition Services Agreement attached as Exhibit 4.1.1(iv) to
the Acquisition Agreement (the "Transition Services Agreement") to be revised to
provide that, notwithstanding the provisions of Section 14 thereof and the
agreement of ConAgra and Swift Foods Company ("Swift") that the voluntary
recalls announced on June 30, 2002 and July 19, 2002 of fresh and frozen beef
products that may be contaminated with E. coli O157:H7 do not constitute an
extraordinary or catastrophic event, for a term of six months from the Closing
Date, ConAgra shall allow Swift to elect at its option to "piggyback" on its
existing insurance policies relating to product recalls ("Product Recall
Insurance"), subject to a $10 million deductible and subject to the procurement
of any consents from the insurers required under the underlying Product Recall
Insurance policies. ConAgra, Acquisition LP and Holdco hereby agree to use their
respective reasonable efforts to secure any such required consents from the
insurers. Swift hereby agrees to pay to ConAgra an amount equal to One Million
United States Dollars ($1,000,000) plus the amount of any incremental costs
incurred by ConAgra in providing such Product Recall Insurance to Swift and its
subsidiaries if it elects to "piggyback" on the Product Recall Insurance for
such six-month period.
Section 16. Stockholders Agreement. ConAgra and Acquisition LP shall cause
Section 2.4.6 of the Stockholders Agreement to be revised to provide that (i) a
new clause (a) shall be added to reflect that prior to the application of the
net proceeds of a partial or complete Divestiture (as defined in the
Stockholders Agreement) as provided in existing clauses (a) - (c) thereof,
Cattle Holdco or Cattleco, as applicable, shall be entitled to retain a portion
of such net proceeds equal to the estimated amount of the next quarterly or year
end tax payment, as applicable, due to Holdco or its designee under the Tax
Sharing Agreement for payment thereunder and (ii) that the first sentence of the
last paragraph of such section reads as follows:
"If the proceeds received by the Company or any of its
Subsidiaries pursuant to the Divestiture of all of the Cattle Feeding Operations
are not sufficient to fully repay the borrowings under the Cattle Line of Credit
and the Cattle Promissory Note, then the payment as provided above of all such
amounts, if any, actually received pursuant to the Divestiture, shall, except as
set forth below, serve to fully extinguish the obligations owed to CAGCO under
the Cattle Line of Credit and the Cattle Promissory Note and neither the Company
nor any Subsidiary thereof shall in any event be liable to CAGCO for the amount
of any shortfall; provided that, notwithstanding the foregoing and to the extent
that such net proceeds were not sufficient to actually repay all obligations
under the Cattle Line of Credit and the Cattle Promissory Note, any amounts
thereafter payable by the Company or any of its Subsidiaries to Swift Cattle
Holdco, Inc., pursuant to the terms of the Tax Sharing Agreement shall be paid
to CAGCO, as designee of Swift Cattle Holdco, Inc. and shall be deemed
additional payments in respect of such obligations and shall be deemed to have
been applied in accordance with clauses (b) and (c) above."
Section 17. Cattleco Loan Agreement. ConAgra and Acquisition LP shall cause
the form of the Cattleco Loan Agreement attached as Exhibit 2.2.3 to the
Acquisition Agreement (the "Cattleco Loan Agreement") to be revised to provide
that:
(a) the defined term "Acquisition Agreement" as set forth in Recital A
of the Cattleco Loan Agreement shall be amended to read as follows:
"the Agreement by and among Lender, S&C Holdco, Inc. and HMTF
Rawhide, L.P., dated as of May 20, 2002, as amended by the First Amendment to
Acquisition Documents dated as of July 3, 2002, as further amended by the Second
Amendment to Acquisition Agreement dated as of September 3, 2002 and as such may
be further amended, supplemented or otherwise modified from to time to time (the
"Acquisition Agreement"), . . .";
(b) a new sentence shall be added to the end of paragraph (1) of
Section 2(a) of the Cattleco Loan Agreement that reads as follows:
"Notwithstanding the foregoing, any payments made by Lender on
behalf of Borrowers pursuant to Section 5.9 of that certain Tax Sharing
Agreement of even date herewith by and among Swift Foods Company, Swift and
Company and Holdco (the "Tax Sharing Agreement") prior to the satisfaction or
extinguishment of the Obligations owed to Lender hereunder shall be deemed
additional advances under the Revolving Note as of the date such payment is
received thereunder;"
(c) the first sentence of Section 3(c) of the Cattleco Loan Agreement
shall be amended to read in its entirety as follows:
"Borrower shall promptly pay to Lender for application on the
Notes all proceeds of the Collateral (as hereinafter described), net of any
expenses incurred in connection with the disposition of such Collateral,
including any and all payments under Feeding Customer Loans (or from related
cattle serving as collateral under any such loans) and any rents, profits or
other payments pursuant to any lease or other use of Collateral (waiver of the
prohibition of Section 8(e) not to be hereby inferred)."; and
(d) a new clause (i) shall be added to Section 3(c) of the Cattleco
Loan Agreement that shall read in its entirety as follows:
"(i) first, to the extent such net proceeds are attributable
to a sale or other transfer of one or more Facilities, the Borrowers shall be
entitled to retain a portion of such net proceeds equal to the estimated amount
of the next quarterly or year end tax payment due, as applicable, to Swift Foods
Company or its designee under the Tax Sharing Agreement for payment thereunder;
and"
and the existing clauses (i) and (ii) of Section 3(c) of the
Cattleco Loan Agreement shall be renumbered (ii) and (iii) respectively, and the
first word of each such clause shall be changed to "second" and "third"
respectively.
Section 18. Certain Payments Pursuant to the Acquisition Agreement. ConAgra
and Holdco hereby agree that the retention, change in control, stay-pay or
similar obligations payable by each pursuant to Section 6.13 of the Acquisition
Agreement shall be paid to their respective payees no later than the ninth
business day following the Closing Date.
Section 19. Cooperation by ConAgra. In connection with the consummation of
the Transactions (as defined in Exhibit A to the Revised Senior Bank Commitment
Letter (the "Revised Exhibit A")), ConAgra hereby agrees to (i) execute and
deliver at the closing of the Transactions, pursuant to Section 1 of Exhibit D
to the Revised Senior Bank Commitment Letter (the "Revised Exhibit D"), the
certificate referenced therein stating that, subject to the funding of the
Senior Secured Credit Facilities, ConAgra is prepared to consummate the
Transactions, (ii) make available at least one senior ConAgra representative to
respond to questions and inquiries from potential purchasers of the Senior Notes
(as defined in the Revised Senior Bank Commitment Letter) regarding ConAgra's
debt and equity investments made pursuant to the Transactions and its plans
relating thereto, and (iii) provide potential purchasers of the Senior Notes
access to senior management and the facilities of the Acquired Business as
reasonably requested by the Arrangers.
Section 20. Defined Terms. Capitalized terms used but not otherwise defined
herein shall have the respective meanings ascribed to such terms in the
Acquisition Agreement.
Section 21. Acquisition Agreement Amendment Provision. This Second
Amendment is executed, delivered and made effective in accordance with Section
15.2 of the Acquisition Agreement.
Section 22. Effect on Acquisition Agreement. Except as specifically amended
hereby, all terms, provisions and conditions of the Acquisition Agreement shall
remain in full force and effect.
Section 23. Amendments. This Second Amendment shall not be amended except
in a writing signed by all the parties hereto.
Section 24. Counterparts. This Second Amendment may be executed and
delivered (including by facsimile transmission) in one or more counterparts,
each of which shall be regarded as an original and all of which shall constitute
one and the same instrument.
Section 25. Applicable Law. This Second Amendment and the legal relations
among the parties hereto shall be governed by and construed in accordance with
the laws of the State of Delaware applicable to contracts made and performed in
Delaware.
Section 26. Consent to Jurisdiction. THE PARTIES HERETO HEREBY IRREVOCABLY
SUBMIT TO THE EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR DELAWARE
STATE COURT SITTING IN WILMINGTON, DELAWARE IN ANY ACTION OR PROCEEDING ARISING
OUT OF OR RELATING TO THIS SECOND AMENDMENT AND EACH OF THE PARTIES HERETO
HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR
PROCEEDING SHALL BE HEARD AND DETERMINED IN ANY SUCH COURT AND IRREVOCABLY
WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH
SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH COURT OR THAT SUCH COURT IS AN
INCONVENIENT FORUM.
The undersigned parties have executed this Second Amendment as of the
date first set forth above.
ConAgra Foods, Inc.
By: /s/ Dwight J. Goslee
-------------------------------------
Dwight J. Goslee,
Executive Vice President, Operations Control
and Development
HMTF Rawhide, L.P.
By: HMTF FW, L.L.C., its General Partner
By: Hicks, Muse, Tate & Furst Equity Fund V, L.P.,
its sole member
By: HM5/GP LLC, its General Partner
By: /s/ Edward Herring
---------------------------------------
Edward Herring, Vice President
Swift Foods Company
By: /s/ Dwight J. Goslee
---------------------------------------
Dwight J. Goslee, President