EXHIBIT 10.5
EXECUTION COUNTERPART
AMENDMENT NO. 3
AMENDMENT NO. 3 dated as of April 4, 2003, among SMITHFIELD FOODS, INC., a
corporation duly organized and validly existing under the laws of the State of
Virginia (the "Borrower"); each of the Subsidiaries of the Borrower identified
under the caption "SUBSIDIARY GUARANTORS" on the signature pages hereto
(individually, a "Subsidiary Guarantor" and, collectively, the "Subsidiary
Guarantors" and, together with the Borrower, the "Obligors"); the Lenders set
forth on the signature pages hereto; the New Lenders (as defined below); and
JPMORGAN CHASE BANK in its capacity as administrative agent for the lenders
currently party to the below-referenced Credit Agreement (in such capacity,
together with its successors in such capacity, the "Administrative Agent").
The Borrower, the Subsidiary Guarantors, the lenders named therein and the
Administrative Agent are parties to a Multi-Year Credit Agreement dated as of
December 6, 2001 (as heretofore modified and supplemented and in effect on the
date hereof, the "Credit Agreement"), providing, subject to the terms and
conditions thereof, for extensions of credit to be made by said Lenders to the
Borrower in an aggregate principal or face amount not exceeding $750,000,000.
The Borrower wishes to increase the aggregate amount of the Commitments
under the Credit Agreement and to amend the Credit Agreement in certain
respects, including to add the financial institutions identified under the
caption "New Lenders" on the signature pages hereto (collectively, the "New
Lenders") as "Lenders" under the Credit Agreement. The Lenders party hereto have
agreed to make such amendments and accordingly, the Obligors, the New Lenders,
the Lenders party hereto and the Administrative Agent, hereby agree as follows:
Section 1. Definitions. Except as otherwise defined in this Amendment No.
3, terms defined in the Credit Agreement are used herein as defined therein.
Section 2. Amendments to Credit Agreement. Effective as of the Amendment
No. 3 Effective Date (as defined below), the Credit Agreement shall be amended
as follows:
2.01. References Generally. References in the Credit Agreement (including
references to the Credit Agreement as amended hereby) to "this Agreement" (and
indirect references such as "hereunder", "hereby", "herein" and "hereof") shall
be deemed to be references to the Credit Agreement as amended hereby. The
reference in the second paragraph of the preamble to the Credit Agreement to
"$750,000,000" shall be deemed to be a reference to "$900,000,000".
2.02. Definitions. Section 1.01 of the Credit Agreement is hereby amended
by inserting the following new definitions in the appropriate alphabetical
locations (or, in the case
of any definition for a term that is defined in the Credit Agreement before
giving effect to this Amendment No. 3, by amending such definition to read as
set forth below):
"Amendment No. 3 Effective Date" has the meaning specified in
Amendment No. 3 hereto.
"Applicable Rate" means, with respect to any ABR Loan, Eurocurrency
Revolving Loan, Federal Funds Loan, Letters of Credit, Swingline Loan, or
with respect to the Commitment Fees payable hereunder, for each Rate Period
(as defined below), the respective rate per annum indicated below for Loans
of such Type or Commitment Fees, as applicable, opposite the applicable
Leverage Ratio (as defined below) indicated below for such Rate Period:
===========================================================================================
Eurodollar Loans,
Eurocurrency Loans,
Federal Funds Loans
Leverage Ratio ABR Loans and Letters of Credit Commitment Fees
-------------------------------------------------------------------------------------------
Greater than or 1.250% 2.250% 0.300%
equal to 4.25
to 1
-------------------------------------------------------------------------------------------
Less than 4.25 1.000% 2.000% 0.275%
to 1 and greater
than or equal to
3.75 to 1
-------------------------------------------------------------------------------------------
Less than 3.75 0.750% 1.750% 0.250%
to 1 and greater
than or equal to
3.25 to 1
-------------------------------------------------------------------------------------------
Less than 3.25 0.500% 1.500% 0.225%
to 1 and greater
than or equal to
2.75 to 1
-------------------------------------------------------------------------------------------
Less than 2.75 0.250% 1.250% 0.200%
to 1 and greater
than or equal to
2.00 to 1
-------------------------------------------------------------------------------------------
Less than 2.00 -0- 1.000% 0.175%
to 1
===========================================================================================
For purposes hereof, (i) a "Rate Period" means the period commencing
on a Rate Reset Date to but not including the immediately following Rate
Reset Date; (ii) a "Rate Reset Date" means, with respect to any fiscal
quarter or fiscal year, the earlier of (x) the date on which the Borrower
delivers the certificate referred to in Section 5.01(c) (a "Compliance
Certificate") in respect of such fiscal quarter or fiscal year, as the case
may
be, and (y) the date on which the Borrower is required to have
delivered the financial statements under Section 5.01(a) or (b) in
respect of such fiscal quarter or fiscal year, as the case may be; and
(iii) "Leverage Ratio" means, for any Rate Period, the ratio of
Consolidated Total Funded Debt as at the last day of the fiscal
quarter of the Borrower ending on or most recently prior to the first
day of such Rate Period to Consolidated EBITDA for the period of four
fiscal quarters ending on such last day.
Anything in this Agreement to the contrary notwithstanding, but
subject to Section 2.12(d), the Applicable Rate shall be the
applicable rate provided for in the table set forth above in this
definition for periods when the Leverage Ratio is greater than 4.25 to
1 (x) during any period when an Event of Default shall have occurred
and be continuing or (y) if the applicable Compliance Certificate
shall not be delivered within the time that the applicable financial
statements are required to be delivered by Section 5.01(a) or (b), as
the case may be (but only, in the case of this clause (y), with
respect to the portion of such Rate Period prior to the delivery of
such Compliance Certificate).
"Borrowing Base" means, at any time, the sum of: (a) 75% of the
result obtained from the following calculation: (i) the aggregate
amount of Eligible Inventory (valued at the lower of (x) cost, on a
first-in-first-out basis or (y) fair market value) of the Borrower and
the Subsidiary Guarantors, determined on a consolidated basis at such
time, plus (ii) the aggregate amount of Eligible Receivables of the
Borrower and the Subsidiary Guarantors, determined on a consolidated
basis at such time, in each case as reflected in the Borrowing Base
Certificate then most recently received by the Administrative Agent
hereunder minus (iii) reserves maintained by such Subsidiary
Guarantors in respect of Eligible Receivables relating to discounts,
advertising, allowances and similar items minus (b) the aggregate
amount of outstanding checks for the purchase of Farm Products (as
defined in the Security Agreement) drawn by the Borrower and its
Subsidiaries that have not cleared. Standards of eligibility, reserves
(including survivability reserves) and advance rates may be adjusted
from time to time in the sole and reasonable judgment of the
Administrative Agent, with any changes in such standards to become
effective three Business Days after delivery of notice thereof by the
Administrative Agent to the Borrower.
"Borrowing Base Certificate" means a certificate substantially in
the form of Exhibit G hereto signed by a Financial Officer.
"Borrowing Base Release Date" means the date specified by the
Borrower in a notice to the Administrative Agent (which notice shall
be delivered not later than 5 days and not earlier than 15 days before
such specified date) as the "Borrowing Base Release Date" for purposes
hereof (which date will result, inter alia, (x) in the removal of the
requirement that the Secured Obligations Amount not exceed the
Borrowing Base and (y) in the reinstatement of the covenants set forth
in Sections 6.12(a) and 6.12(c), and adjustments to the requirements
of Section 6.12(b)).
Notwithstanding the foregoing, for any such notice to be
effective, the Borrower shall concurrently deliver a certificate of a
Financial Officer to the effect that (i) on the
date of the delivery of such notice, no Default shall have occurred
and be continuing and (ii) setting forth calculations in form and
detail satisfactory to the Administrative Agent demonstrating
compliance with the requirements of Section 6.12 as at the last day of
the most recent fiscal quarter of the Borrower under the assumption
that the Borrowing Base Release Date had occurred prior to such last
day.
"Commitment" means, with respect to each Lender, the commitment
of such Lender to make Revolving Loans and to acquire participations
in Letters of Credit and Swingline Loans hereunder, expressed as an
amount representing the maximum aggregate amount of such Lender's
Revolving Credit Exposure hereunder, as such commitment may be (a)
reduced from time to time pursuant to Section 2.08 and (b) reduced or
increased from time to time pursuant to assignments by or to such
Lender pursuant to Section 10.04 (and the "Commitment" of any Lender
shall be deemed to include its Dollar Sub-Commitment and its
Multicurrency Sub-Commitment, if any). The initial amount of each
Lender's Commitment, after giving effect to Amendment No. 3 hereto, is
set forth on Schedule 2.01 to Amendment No. 3, or in the Assignment
and Acceptance pursuant to which such Lender shall have assumed its
Commitment, as applicable. The initial amount of the Total Commitment
(including the Total Dollar Sub-Commitment and the Total Multicurrency
Sub-Commitment), after giving effect to Amendment No. 3 hereto, is
$900,000,000.
"Dollar Lender" means (a) on the Amendment No. 3 Effective Date,
the Lenders having Dollar Sub-Commitments on Schedule 2.01 to
Amendment No. 3 hereto under the heading "Dollar Lenders" and (b)
thereafter, the Lenders from time to time holding Loans made pursuant
to Dollar Sub-Commitments or holding Dollar Sub-Commitments, after
giving effect to any assignments thereof permitted by Section
10.04(b).
"Dollar Sub-Commitment" means, as to each Dollar Lender, the
obligation of such Dollar Lender to make Revolving Loans and to
acquire participations in Letters of Credit hereunder, expressed as an
amount representing the maximum aggregate amount of such Lender's
Revolving Dollar Credit Exposure hereunder, as such commitment may be
(a) reduced from time to time pursuant to Section 2.08 and (b) reduced
or increased from time to time pursuant to assignments by or to such
Lender pursuant to Section 10.04. The initial amount of each Lender's
Dollar Sub-Commitment, after giving effect to Amendment No. 3 hereto,
is set forth on Schedule 2.01 to Amendment No. 3 hereto, or in the
Assignment and Acceptance pursuant to which such Lender shall have
assumed its Dollar Sub-Commitment, as applicable. The initial
aggregate amount of the Total Dollar Sub-Commitment, after giving
effect to Amendment No. 3 hereto, is $860,000,000.
"Eligible Inventory" means, as at any date with respect to any
Person, all Inventory (i) that is owned by (and in the possession or
under the control of) such Person as at such date, (ii) that is
located in a jurisdiction in the United States of America, (iii) as to
which (before the Security Termination Date) appropriate Uniform
Commercial Code financing statements have been filed naming such
Person as "debtor" and the Collateral Agent as "secured party", and
over which (before the Security Termination Date) the Collateral Agent
has a perfected security interest subject to no prior or equal Lien
(other
than the pari passu security interest securing the Pari Passu Debt),
subject to Section 10.13, (iv) that meets all standards imposed by any
governmental agency or department or division thereof having
regulatory authority over such inventory, its use or sale, (v) for
which such Person has made full and final payment and (vi) that is
currently usable in the manufacturing process or saleable in the
normal course of such Person's business without any notice to, or
consent of, any governmental agency or department or division thereof
(excluding however, except to the extent that the Required Lenders
otherwise agree (x) any such Inventory that is in transit and (y) with
respect to any specific customer or third-party processor, any such
Inventory that has been shipped to a customer of such Person,
including third-party processors, even if on a consignment or "sale or
return" basis, and excluding repair and replacement parts for
machinery and equipment). Notwithstanding anything in clause (vi) of
the foregoing sentence to the contrary (but subject to clauses (i)
through (v) of the foregoing sentence), Eligible Inventory shall
include but not be limited to (x) all barrows, gilts, boars, sows,
feeder pigs, suckling pigs, nursery pigs and commercial sows and
boars, multiplier hogs, nucleus hogs and other hogs (collectively,
"Hogs") and (y) all calves and steers (collectively, "Cattle"), in
each case at the time of determination owned and being raised at
facilities owned by such Person or at facilities subject to an
exclusive contract with such Person (i.e., the operator of such
facility has no similar contract with any other Person) for the
feeding and raising of Hogs or Cattle.
"Eligible Receivables" means, as at any date with respect to any
Person, the aggregate amount of all accounts (as defined in the
Uniform Commercial Code) of such Person arising from the sale by such
Person of Inventory in the ordinary course of its business and (before
the Security Termination Date) over which the Collateral Agent has a
perfected security interest subject to no prior or equal Lien (other
than the pari passu security interest securing the Pari Passu Debt),
subject to Section 10.13, other than the following (determined without
duplication):
(a) any account not payable in Dollars,
(b) any account that is not paid within 60 days after the
date of the invoice for the related inventory,
(c) any account owing from a subsidiary or Affiliate of such
Person,
(d) any account (other than an LC-Backed Receivable) owing
from an account debtor whose principal place of business is
located outside of the United States of America, provided that
the aggregate amount of accounts that are not excluded from the
definition of "Eligible Receivables" pursuant to this clause (d)
by virtue of their constituting LC-Backed Receivables (other than
LC-Backed Receivables the related letter of credit for which has
been delivered to the Collateral Agent in pledge under the
Security Agreement) may not exceed 10% of the Borrowing Base,
(e) any account owing from an account debtor that is
insolvent or the subject of a bankruptcy case,
(f) any account that is more than 28 days past due,
(g) all accounts of any account debtor if more than 20% of
the aggregate amount of the accounts owing from such account
debtor are more than 28 days past due,
(h) all accounts owing from any account debtor if the
accounts owing from such account debtor and its Affiliates at the
time exceed 10% of all accounts then payable to the Obligors,
(i) any account as to which there is any unresolved dispute
with the respective account debtor (but only to the extent of the
amount thereof in dispute),
(j) any account evidenced by an instrument (as defined in
the Uniform Commercial Code) not in the possession of the
Collateral Agent and containing all necessary endorsements,
(k) any account representing an obligation for goods sold on
consignment, approval or a sale-or-return basis or subject to any
other repurchase, return or offset arrangement,
(l) any amount as to which there is an offsetting liability
from the Borrower, any Subsidiary or any Affiliate of the
Borrower (but only to the extent of the amount of such offsetting
liability), and
(m) all amounts reserved by any Subsidiary or Affiliate of
the Borrower related to advertising and promotional programs for
the respective account debtor (excluding general promotional
reserves that are not reserved on a specific account basis).
"LC-Backed Receivable" means an account (as defined in the
Uniform Commercial Code) to the extent that the payment thereof is
backed by a letter of credit issued for account of the related account
debtor, or confirmed, by a domestic office of a commercial bank
organized under the laws of the United States of America or any state
thereof the short term deposits of which are rated A-1 or better by
S&P or P-1 by Moody's.
"Multicurrency Lender" means (a) on the Amendment No. 3 Effective
Date, the Lenders having Multicurrency Sub-Commitments on Schedule
2.01 to Amendment No. 3 hereto under the heading "Multicurrency
Lenders" and (b) thereafter, the Lenders from time to time holding
Loans made pursuant to Multicurrency Sub-Commitments or holding
Multicurrency Sub-Commitments, after giving effect to any assignments
thereof permitted by Section 10.04(b).
"Multicurrency Sub-Commitment" means, as to each Multicurrency
Lender, the obligation of such Multicurrency Lender to make Revolving
Loans and to acquire participations in Letters of Credit hereunder, in
each case, denominated in Dollars or in an Approved Foreign Currency,
expressed as a Dollar amount representing the Dollar Equivalent of the
maximum aggregate amount of such Lender's Revolving Multicurrency
Credit Exposure hereunder, as such commitment may be (a) reduced from
time to time pursuant to Section 2.08 and (b) reduced or increased
from time to time pursuant to assignments by or to such Lender
pursuant to Section 10.04. The initial amount of each Lender's
Multicurrency Sub-Commitment, after giving effect to Amendment No. 3
hereto, is set forth on Schedule 2.01 to Amendment No. 3 hereto, or in
the Assignment and Acceptance pursuant to which such Lender shall have
assumed its Multicurrency Sub-Commitment, as applicable. The initial
aggregate amount of the Total Multicurrency Sub-Commitment, after
giving effect to Amendment No. 3 hereto, is $40,000,000.
"Secured Obligations Amount" means, at any time, the sum of the
aggregate amount of the Revolving Credit Exposures of all of the
Lenders plus the aggregate principal amount of all Pari Passu Debt
then outstanding plus the aggregate principal amount (as defined in
the definition of "Material Indebtedness" herein) of the obligations
of the Borrower and its Subsidiaries under Hedging Agreements that are
Hedging Obligations under and as defined in the Security Agreement.
"Total Commitment" means, at any time, the aggregate amount of
the Commitments as in effect at such time minus, prior to the date on
which the Borrower shall furnish a complete audit of the Borrowing
Base to the Lenders pursuant to Section 5.01(f), $150,000,000.
2.03. Commitments. Section 2.01 of the Credit Agreement shall be
amended to read in its entirety as follows:
"SECTION 2.01. Commitments. Subject to the terms and conditions
set forth herein:
(a) each Dollar Lender agrees to make Revolving Loans to the
Borrower in Dollars from time to time during the Availability
Period in an aggregate principal amount (i) that will not result
in such Lender's Revolving Dollar Credit Exposure exceeding such
Lender's Dollar Sub-Commitment, or the sum of the total Revolving
Credit Exposures exceeding the Total Commitment and (ii) that,
before the Borrowing Base Release Date, will not result in the
Secured Obligations Amount exceeding the Borrowing Base; and
(b) each Multicurrency Lender agrees to make Revolving Loans
to the Borrower in Dollars or one or more Approved Foreign
Currencies from time to time during the Availability Period in an
aggregate principal amount (i) that will not result in such
Lender's Revolving Multicurrency Credit Exposure exceeding such
Lender's Multicurrency Sub-Commitment, or the sum of the total
Revolving
Credit Exposures exceeding the Total Commitment and (ii) that, before
the Borrowing Base Release Date, will not result in the Secured
Obligations Amount exceeding the Borrowing Base.
Within the foregoing limits and subject to the terms and conditions set
forth herein, the Borrower may borrow, prepay and reborrow Revolving
Loans."
2.04. Swingline Loans. Section 2.04(a) of the Credit Agreement shall
be amended to read in its entirety as follows:
"(a) Obligation of Swingline Lender. Subject to the terms and
conditions set forth herein, the Swingline Lender agrees to make Swingline
Loans to the Borrower from time to time during the Availability Period, in
Dollars, in an aggregate principal amount at any time outstanding that will
not result in (i) the aggregate principal amount of outstanding Swingline
Loans exceeding $15,000,000, (ii) the sum of the total Revolving Dollar
Credit Exposures exceeding the Total Dollar Sub-Commitment, (iii) the
Secured Obligations Amount exceeding the Borrowing Base at any time before
the Borrowing Base Release Date or (iv) the sum of the total Revolving
Credit Exposures exceeding the Total Commitment; provided that the
Swingline Lender shall not be required to make a Swingline Loan to
refinance an outstanding Swingline Loan. Within the foregoing limits and
subject to the terms and conditions set forth herein, the Borrower may
borrow, prepay and reborrow Swingline Loans."
2.05. Letters of Credit. Section 2.05(b) of the Credit Agreement, and
the first paragraph of Section 2.05(j) of the Credit Agreement, shall each be
amended to read in their entirety as follows:
"(b) Requests for Letters of Credit. To request the issuance of a
Letter of Credit (or the amendment, renewal or extension of an outstanding
Letter of Credit), the Borrower shall hand deliver or telecopy (or transmit
by electronic communication, if arrangements for doing so have been
approved by the relevant Issuing Bank) to the relevant Issuing Bank and the
Administrative Agent (reasonably in advance of the requested date of
issuance, amendment, renewal or extension) a notice requesting the issuance
of a Letter of Credit, or identifying the Letter of Credit to be amended,
renewed or extended, the date of issuance, amendment, renewal or extension,
the date on which such Letter of Credit is to expire (which shall comply
with paragraph (c) of this Section 2.05), the Currency (which shall be
Dollars or an Approved Foreign Currency) and amount of such Letter of
Credit, the name and address of the beneficiary thereof, whether such
Letter of Credit is to be made under the Dollar Sub-Commitments or the
Multicurrency Sub-Commitments and such other information as shall be
necessary to prepare, amend, renew or extend such Letter of Credit. If
requested by the relevant Issuing Bank, the Borrower also shall submit a
letter of credit application on the such Issuing Bank's standard form in
connection with any request for a Letter of Credit. A Letter of Credit
shall be issued, amended, renewed or extended only if (and upon issuance,
amendment, renewal or extension of each Letter of Credit the Borrower shall
be deemed to represent and warrant that), after giving effect to such
issuance, amendment,
renewal or extension (i) the Dollar LC Exposure shall not exceed
$125,000,000 and the total Revolving Dollar Credit Exposures shall not
exceed the Total Dollar Sub-Commitment, (ii) the Multicurrency LC
Exposure shall not exceed $10,000,000 or the Foreign Currency
Equivalent thereof and the total Revolving Multicurrency Credit
Exposures shall not exceed the Total Multicurrency Sub-Commitment,
(iii) the Secured Obligations Amount shall not exceed the Borrowing
Base at any time before the Borrowing Base Release Date and (iv) the
sum of the total Revolving Credit Exposures shall not exceed the Total
Commitment."
"(j) Cash Collateral. If (i) any Event of Default shall have
occurred and be continuing, (ii) the aggregate amount of Revolving
Dollar Credit Exposure of all Dollar Lenders hereunder exceeds the
Total Dollar Sub-Commitment, (iii) the aggregate amount of Revolving
Multicurrency Credit Exposure of all Multicurrency Lenders hereunder
exceeds the Total Multicurrency Sub-Commitment or (iv) at any time
before the Borrowing Base Release Date, the Secured Obligations Amount
exceeds the then-current Borrowing Base, then on the Business Day that
the Borrower receives notice from the Administrative Agent or the
Required Lenders (or, if the maturity of the Loans has been
accelerated, Lenders with LC Exposure representing greater than 50% of
the total LC Exposure) demanding the deposit of cash collateral
pursuant to this paragraph, the Borrower shall deposit in an account
with the Administrative Agent, in the name of the Administrative Agent
and for the benefit of the Lenders, an amount in Dollars equal to (x)
in the case of the foregoing clause (i), the LC Exposure as of such
date, converting the aggregate Multicurrency LC Exposure into the
Dollar Equivalent thereof at that date, and (y) in the case of the
foregoing clauses (ii), (iii) and (iv), the amount of the relevant
excess plus (in each of the cases referred to in the foregoing clauses
(i), (ii), (iii), and (iv)) any accrued and unpaid interest thereon;
provided that the obligation to deposit such cash collateral shall
become effective immediately, and such deposit shall become
immediately due and payable, without demand or other notice of any
kind, upon the occurrence of any Event of Default with respect to the
Borrower described in clause (h) or (i) of Article VII. Such deposit
shall be held by the Administrative Agent as collateral for the
payment and performance of the obligations of the Borrower under this
Agreement."
2.06. Mandatory Prepayments. Section 2.10(b) of the Credit
Agreement shall be amended to read in its entirety as follows:
"(b) Mandatory Prepayments. The Borrower shall from time to time
prepay the Revolving Loans and Swingline Loans (and/or provide cover
for LC Exposure as specified in Section 2.05(j)) in such amounts as
shall be necessary so that at all times the Secured Obligations Amount
shall not exceed the Borrowing Base at any time before the Borrowing
Base Release Date, such amounts to be applied, first, to Swingline
Loans outstanding, second, to Revolving Loans outstanding and, third,
as cover for LC Exposure outstanding.
On each date on which a Borrowing Base Certificate or other
certificate is delivered pursuant to Section 5.01(f), the Borrower
shall (as provided in Section 5.01(f))
determine the aggregate Revolving Credit Exposure (taking into account
the Dollar Equivalent of the aggregate amount of Revolving Credit
Loans denominated in any Approved Foreign Currency), and shall provide
the Administrative Agent with a copy of such determination. In
addition, promptly upon the receipt by the Administrative Agent of a
Currency Valuation Notice (as defined below), the Administrative Agent
shall (and at any time at the Administrative Agent's option, the
Administrative Agent may) similarly determine the aggregate Revolving
Credit Exposure. Upon receipt of any such determination from the
Borrower, and upon its making any such determination, the
Administrative Agent shall promptly notify the Lenders thereof (and in
the case of any such determination by the Administrative Agent, the
Borrower). If on the date of any such determination the aggregate
Revolving Credit Exposure exceeds 105% of the aggregate amount of the
Commitments as then in effect, the Borrower shall, if requested by the
Required Lenders (through the Administrative Agent), prepay the
Revolving Loans and Swingline Loans (and/or provide cover for LC
Exposure as specified in Section 2.05(j)) in such amounts as shall be
necessary so that after giving effect thereto, the aggregate Revolving
Credit Exposure does not exceed the Commitments. For purposes hereof,
"Currency Valuation Notice" means a notice given by the Required
Lenders stating that such notice is a "Currency Valuation Notice" and
requesting that the Administrative Agent determine the Dollar
Equivalent of the aggregate Revolving Credit Exposure. The
Administrative Agent shall not be required to make more than one
valuation determination pursuant to a Currency Valuation Notice during
any rolling three-month period.
For the purpose of the determinations in this paragraph (b), the
outstanding principal amount of any Loan that is denominated in an
Approved Foreign Currency shall be deemed to be the Dollar Equivalent
of the amount in the Currency of such Loan, determined as of the date
of such determination or, in the case of a Currency Valuation Notice
received by the Administrative Agent prior to 11:00 a.m., New York
City time, on a Business Day, on such Business Day or, in the case of
a Currency Valuation Notice otherwise received, on the first Business
Day after such Currency Valuation Notice is received."
2.07. Reporting Requirements. Section 5.01(f) of the Credit
Agreement shall be amended, and a new Section 5.01(g) shall be added to the
Credit Agreement (and the existing Section 5.01(g) of the Credit Agreement shall
be relettered to be Section 5.01(h)), each to read in its entirety as follows:
"(f) as soon as available and in any event within 7 Business
Days after the end of each monthly accounting period (i) if such
accounting period ends before the Borrowing Base Release Date, a
Borrowing Base Certificate certifying as to the Borrowing Base as at
the last day of such accounting period accompanied by supporting
documentation and other supplemental reports as reasonably requested
by the Administrative Agent and (ii) a certificate of a Financial
Officer in form and detail satisfactory to the Administrative Agent
setting forth a determination of the aggregate Revolving Credit
Exposure as at the last day of such monthly accounting period (taking
into account the Dollar Equivalent of
the aggregate amount of Revolving Credit Loans denominated in any Approved
Foreign Currency);"
"(g) as soon as available and in any event within 90 days after the
end of each fiscal year of the Borrower that ends before the Borrowing Base
Release Date (and at such other times as may be requested by the
Administrative Agent), a collateral audit report (prepared at the expense
of the Borrower) of an independent collateral auditor (which may be, or be
affiliated with, one of the Lenders), approved by the Administrative Agent,
with respect to the Receivables and Inventory components included in the
Borrowing Base which report shall indicate that, based upon a review by
such auditors of the Receivables (including, without limitation,
verification with respect to the amount, aging, identity and credit of the
respective account debtors and the billing practices of the Borrower and
its Subsidiaries) and Inventory (including, without limitation,
verification as to the value, location and respective types), the
information set forth in the Borrowing Base Certificate then most recently
received by the Administrative Agent hereunder is accurate and complete in
all material respects and whether or not a Trigger Date (as such term is
defined in Section 10.13 hereof) has occurred; and"
2.08. Inspection Rights. Section 5.06 of the Credit Agreement shall be
amended to read in its entirety as follows:
"SECTION 5.06. Books and Records; Inspection Rights. The Borrower
will, and will cause each of its Subsidiaries to, keep proper books of
record and account in which full, true and correct entries are made of all
dealings and transactions in relation to its business and activities. The
Borrower will, and will cause each of its Subsidiaries to, permit any
representatives designated by the Administrative Agent or any Lender, upon
reasonable prior notice, to visit and inspect its properties, to examine
and make extracts from its books and records, and to discuss its affairs,
finances and condition with its officers and independent accountants, all
at such reasonable times and as often as reasonably requested.
Without limiting the generality of the foregoing, the Borrower
acknowledges that the representatives designated by the Administrative
Agent or any Lender may include any consultants, accountants, lawyers and
appraisers retained by the Administrative Agent, and that such
representatives may conduct evaluations and appraisals (including but not
limited to independent inventory appraisals) of the Borrower's computation
of the Borrowing Base and the assets included in the Borrowing Base and
such other assets and properties of the Borrower or its Subsidiaries as the
Administrative Agent may require, all at such reasonable times and as often
as reasonably requested."
2.09. Fundamental Changes. Section 6.03(b) of the Credit Agreement
shall be amended to read in its entirety as follows:
"(b) Acquisitions and Joint Ventures. The Borrower will not, and will
not permit any of its Subsidiaries to invest in any Joint Venture or
consummate any Acquisition,
unless immediately prior to such Acquisition or investment in any Joint
Venture and after giving effect thereto, no Default shall have occurred and
be continuing, and:
(i) (a) such transaction is an Acquisition and such Acquisition
(if by purchase of assets, merger or consolidation) is effected in
such manner that the acquired business, and the related assets, are
owned either by the Borrower or a Subsidiary and, if effected by
merger or consolidation involving the Borrower, the Borrower is the
continuing or surviving entity and, if effected by merger or
consolidation involving a Subsidiary, the continuing or surviving
entity is a Subsidiary; or (b) such transaction is an Acquisition and
such Acquisition (if by purchase of stock or partner, member or other
ownership interests) is effected in such manner so that the acquired
entity becomes a Subsidiary; and
(ii) such transaction is an Acquisition or a Joint Venture and
immediately after giving effect to such Acquisition or Joint Venture
(x) the Borrower is in compliance with Section 6.12 (the determination
of such compliance to be calculated on a pro forma basis, as at the
end of the fiscal quarter most recently ended prior to the date of
such Acquisition or Joint Venture for which financial statements of
the Borrower and its Subsidiaries are available, under the assumption
that such Acquisition or Joint Venture and any other Acquisitions or
Joint Ventures consummated during the twelve-month period ending on
such date shall have occurred, and any Indebtedness in connection
therewith shall have been incurred, at the beginning of the applicable
period, and under the assumption that interest for such period had
been equal to the actual weighted average interest rate in effect for
the Loans hereunder on the date of such Acquisition or Joint Venture)
and, in the event that the aggregate amount of expenditures in respect
of such Acquisition or Joint Venture and of all prior Acquisitions and
Joint Ventures made during a single fiscal year and not covered by a
certificate delivered under this subclause (ii) exceeds $100,000,000,
the Borrower shall have delivered to the Administrative Agent a
certificate of a Financial Officer showing calculations in reasonable
detail to demonstrate compliance with this subclause (ii) and
certifying that prior to such acquisition and after giving effect
thereto, no Default shall have occurred and be continuing and (y) if
such transaction is consummated before the Borrowing Base Release Date
and the aggregate amount of expenditures in respect of such
Acquisition or Joint Venture and of all prior Acquisitions and Joint
Ventures made during a single fiscal year exceeds $20,000,000, then,
immediately after giving effect to such Acquisition or Joint Venture
(and any borrowings hereunder made in connection therewith), the
excess of (A) the lesser of the Borrowing Base and the aggregate
Commitments hereunder at such time minus (B) the Secured Obligations
Amount shall not be less than $150,000,000."
2.10. Financial Covenants. Section 6.12 of the Credit Agreement shall
be amended to read in its entirety as follows:
"(a) Consolidated Leverage Ratio. The Borrower will not, as at any
date on or after the Borrowing Base Release Date, permit the ratio of
Consolidated Total Funded Debt as at such date to Consolidated EBITDA for
the period of four fiscal quarters
ending on or most recently ended prior to such date, to be more than the
following respective amounts at any time during the following respective
periods:
Period Ratio
------ -----
From Amendment No. 3 Effective
Date through last day of the fiscal
quarter ending July 27, 2003 4.50 to 1
From the day immediately following last day of fiscal
quarter ending July 27, 2003 through last day of
fiscal quarter ending
October 26, 2003 4.00 to 1
From the day immediately following last
day of fiscal quarter ending October 26,
2003 and all times thereafter 3.75 to 1
(b) Consolidated Interest Coverage Ratio. The Borrower will not
permit the ratio of Consolidated EBITDA to Consolidated Interest Expense
for any period of four consecutive fiscal quarters of the Borrower (i)
ending before the Borrowing Base Release Date, to be less than 2.50 to 1 or
(ii) ending on or after the Borrowing Base Release Date, to be less than
3.00 to 1.
(c) Inventory and Receivables. The Borrower will not, on any date
falling on or after the Borrowing Base Release Date, permit the ratio of
(i) the sum of (x) if such date falls prior to the Security Termination
Date, the aggregate amount of inventory and accounts receivable of the
Borrower and the Subsidiary Guarantors subject to the Lien of the Security
Agreement or (y) if such date falls on or after the Security Termination
Date, the aggregate amount of inventory and accounts receivable owned by
the Borrower and the Subsidiary Guarantors to (ii) the aggregate Revolving
Credit Exposure of the Lenders under this Agreement at such date to be less
than 1.30 to 1."
2.11. Amendments. Section 10.02(b) of the Credit Agreement shall be
amended by (i) the deleting the word "or" at the end of clause (vii)
therein, (ii) adding a new clause (viii) therein to read in its entirety as
follows, and (iii) relettering the existing clause (viii) as clause (ix):
"(viii) change the reference to 75% in the definition of "Borrowing
Base" to a higher percentage without the written consent of each Lender,
or"
2.12. Expenses. Section 10.03(a) of the Credit Agreement shall be
amended to read in its entirety as follows:
"(a) Expenses. The Borrower shall pay (i) all reasonable
out-of-pocket expenses incurred by the Administrative Agent and its
Affiliates, including the reasonable fees, charges and disbursements of
counsel for the Administrative Agent, in connection with
the administration of this Agreement and the other Loan Documents or any
amendments, modifications or waivers of the provisions hereof or thereof
(whether or not the transactions contemplated hereby or thereby shall be
consummated), (ii) all reasonable out-of-pocket expenses incurred by the
Issuing Bank in connection with the issuance, amendment, renewal or
extension of any Letter of Credit or any demand for payment thereunder,
(iii) all reasonable fees (including reasonable and customary internally
allocated fees and expenses of employees of the Administrative Agent as to
which invoices have been furnished) and expenses of any such
representatives retained by the Administrative Agent as to which invoices
have been furnished to conduct any evaluation or appraisal of the assets of
the Borrower included in the Borrowing Base and (iv) all out-of-pocket
expenses incurred by the Administrative Agent, the Issuing Bank or any
Lender, including the fees, charges and disbursements of any counsel for
the Administrative Agent, any Issuing Bank or any Lender, in connection
with the enforcement or protection of its rights in connection with this
Agreement and the other Loan Documents, including its rights under this
Section 10.03, or in connection with the Loans made or Letters of Credit
issued hereunder, including all such out-of-pocket expenses incurred during
any workout, restructuring or negotiations in respect of such Loans or
Letters of Credit."
2.13. Perfection of Security Interests. Section 10.13 of the Credit
Agreement shall be amended to read in its entirety as follows:
"SECTION 10.13. Perfection of Security Interests. Notwithstanding
anything contained herein or in any Security Document to the contrary,
neither the Borrower nor any of its Subsidiaries shall be responsible for
the failure of the Lien created by the Security Agreement to be first
priority and perfected (a) to the extent that such failure results from the
failure by the Collateral Agent to file continuation statements under the
Uniform Commercial Code in respect of such Lien, (b) before the Borrowing
Base Release Date, to the extent that such failure relates to Liens over
letters of credit supporting LC-Backed Receivables, provided that the
aggregate amount of LC-Backed Receivables in respect of which such Liens
over the related letters of credit are not perfected does not exceed 10% of
the Borrowing Base, (c) before the Borrowing Base Release Date, to the
extent that such failure relates to Liens over Eligible Receivables and
results from such Eligible Receivables being due from Governmental
Authorities, provided that the amount of the Borrowing Base attributable to
such Eligible Receivables shall not exceed the greater of $20,000,000 or 5%
of the amount of the Borrowing Base in the aggregate or (d) on or after the
Borrowing Base Release Date, to the extent that such failure relates to
Liens over receivables and results from such receivables being due from
Governmental Authorities.
If, as determined by a report of an independent collateral auditor
referred to in Section 5.01(g) hereof, the amount of Collateral subject to
any such failure exceeds any relevant amount referred to in clause (a) or
(b) of the preceding sentence, then, (i) on any such date (each, a "Trigger
Date") that the Borrower determines that such excess exists, the Borrower
shall immediately notify the Administrative Agent and the Collateral Agent
of such event, (ii) the Borrower shall furnish to the Administrative Agent
on such Trigger Date a Borrowing Base Certificate calculated on the basis
of the Borrowing Base
Certificate most recently furnished hereunder but recalculating the
Borrowing Base with pro forma adjustments reflecting the exclusion of such
excess Collateral from the Eligible Receivables or Eligible Inventory, as
the case may be, (iii) the Borrower shall forthwith on such Trigger Date
comply with its obligations under Section 2.10(b) after giving effect to
the Borrowing Base as so calculated and (iv) not later than 30 days
following such Trigger Date, the Borrower shall have taken such action as
shall be necessary to eliminate such excess. If the Borrower is in
compliance with the preceding sentence, then (x) except as expressly
provided in the preceding sentence, no account or Inventory shall be
excluded from Eligible Receivables or Eligible Inventory, as the case may
be, (y) no Obligor shall be deemed to have breached any covenant or made
any untrue representation or warranty and (z) no Default or Event of
Default shall be deemed to have occurred or be continuing, in each of the
cases referred to in the foregoing clauses (x), (y) and (z) solely because
any Lien created by the Security Agreement shall fail to be a first
priority perfected Lien if such failure is described in clause (a) or (b)
of the first sentence or this Section 10.13; except that, notwithstanding
the preceding provisions of this Section 10.13, the Borrower shall from
time to time upon the request of the Administrative Agent or the Required
Lenders deliver or cause to be delivered to the Collateral Agent in pledge
under the Security Agreement the letters of credit supporting LC-Backed
Receivables."
2.14. Schedule 2.01. Schedule 2.01 to the Credit Agreement shall be
amended to read in its entirety as Schedule 2.01 hereto.
2.15. Exhibit G. A new Exhibit G shall be added to the Credit
Agreement to read in its entirety as Exhibit G hereto.
Section 3. Amendments to Security Agreement. Effective as of the
Amendment No. 3 Effective Date, the Security Agreement shall be amended as
follows:
3.01. References Generally. References in the Security Agreement
(including references to the Security Agreement as amended hereby) to "this
Agreement" (and indirect references such as "hereunder", "hereby", "herein" and
"hereof") shall be deemed to be references to the Security Agreement as amended
hereby.
3.02. Definitions. The definition of "Hedging Agreement" in Section 1
of the Security Agreement is hereby deleted and a new definition of "Financial
Hedging Agreement" is hereby added in its appropriate alphabetical location in
Section 1 of the Security Agreement to read in its entirety as follows, and all
references to "Hedging Agreement" or "Hedging Agreements" in the Security
Agreement (other than the reference to "Hedging Agreements" in the second
paragraph of the introduction thereto) shall be deemed to be references to
"Financial Hedging Agreement" or "Financial Hedging Agreements", as the case may
be:
"Financial Hedging Agreement" shall mean any Hedging Agreement, other
than any Hedging Agreement that is intended to hedge the price, or provide
for the future delivery or sale, of commodities.
Section 4. Representations and Warranties. The Borrower represents and
warrants to the Lenders that the representations and warranties set forth in
Article III of the Credit Agreement are true and complete on the date hereof as
if made on and as of the date hereof and as if each reference in said Article
III to "this Agreement" included reference to this Amendment No. 3.
Section 5. Condition Precedent. The amendments set forth in Sections 2
and 3 above shall not become effective until the date (the "Amendment No. 3
Effective Date"), on which the Administrative Agent shall notify the Borrower
that each of the following conditions is satisfied:
(a) Execution of Agreement. The Administrative Agent shall have
received from each Obligor, each New Lender and the Required Lenders either
(i) a counterpart of this Agreement signed on behalf of such party or (ii)
written evidence satisfactory to the Administrative Agent (which may
include telecopy transmission of a signed signature page of this Agreement)
that such party has signed a counterpart of this Agreement.
(b) Corporate Documents. The Administrative Agent shall have received
such documents and certificates as the Administrative Agent or its counsel
may reasonably request relating to the organization, existence and good
standing of each Obligor, the authorization of this Amendment No. 3 and the
Transactions as amended hereby, and any other legal matters relating to
each Obligor, this Amendment No. 3, the other Loan Documents or the
Transactions, all in form and substance satisfactory to the Administrative
Agent and its counsel.
(c) Opinion of Counsel to Obligors. The Administrative Agent shall
have received a favorable written opinion (addressed to the Administrative
Agent and the Lenders and dated the Amendment No. 3 Effective Date) of
McGuire Woods Battle & Boothe LLP, counsel for the Obligors, substantially
in the form of Exhibit A hereto and covering such other matters relating to
the Obligors, this Amendment No. 3 or the Transactions as amended hereby,
as the Required Lenders shall reasonably request (and the Borrower hereby
requests such counsel to deliver such opinion).
(d) Fees, Etc. The Administrative Agent shall have received (i) for
the account of each Lender (other than the New Lenders) that authorizes the
Administrative Agent to execute this Amendment No. 3 on or before the
effectiveness of the amendments provided in Section 2 above, an amendment
fee in an amount equal to 0.10% of the aggregate amount of the Commitment
of such Lender and (ii) all other fees and other amounts due and payable on
or prior to the Amendment No. 3 Effective Date, including, to the extent
invoiced, reimbursement or payment of all out-of-pocket expenses required
to be reimbursed or paid by the Obligors hereunder.
(e) Initial Loans. To the extent that, on the Amendment No. 3
Effective Date any Dollar Loans shall be outstanding under the Credit
Agreement, the Borrower shall have borrowed from, and each of the Dollar
Lenders (including the New Lenders, to the extent constituting Dollar
Lenders) shall have made Dollar Loans to the Borrower, and (notwithstanding
the provisions of Section 2.17(d) of the Credit Agreement requiring that
prepayments be made ratably in accordance with the principal amounts of the
Dollar Loans held by the Dollar Lenders) the Borrower shall have prepaid
Dollar Loans held by the Dollar Lenders in such amounts as shall be
necessary, together with accrued interest and any amounts payable under
Sections 2.14 and 2.16 of the Credit Agreement, so that after giving effect
to such Dollar Loans and prepayments, the Dollar Loans shall be held by the
Dollar Lenders pro rata in accordance with the respective amounts of their
Dollar Sub-Commitments (as modified hereby).
In addition, to the extent that, on the Amendment No. 3 Effective Date
any Multicurrency Loans in any Currency shall be outstanding under the
Credit Agreement, the Borrower shall have borrowed from, and each of the
Multicurrency Lenders (including the New Lenders, to the extent
constituting Multicurrency Lenders) shall have made Multicurrency Loans in
such Currency to the Borrower, and (notwithstanding the provisions of
Section 2.17(d) of the Credit Agreement requiring that prepayments be made
ratably in accordance with the principal amounts of the Multicurrency Loans
of such Currency held by the Multicurrency Lenders) the Borrower shall have
prepaid Multicurrency Loans held by the Multicurrency Lenders in such
amounts as shall be necessary, together with accrued interest and any
amounts payable under Sections 2.14 and 2.16 of the Credit Agreement, so
that after giving effect to such Multicurrency Loans and prepayments, the
Multicurrency Loans in such Currency shall be held by the Multicurrency
Lenders pro rata in accordance with the respective amounts of their
Multicurrency Sub-Commitments (as modified hereby).
(f) Other Documents. The Administrative Agent shall have received such
other documents as the Administrative Agent or any Lender or Special
Counsel may reasonably request.
Section 6. New Lenders. Each Person not heretofore a Lender under the
Credit Agreement that becomes a Lender by operation of this Amendment No. 3
shall, upon the satisfaction of the conditions precedent set forth in Section 4
above, be a "Lender" under and as defined in the Credit Agreement for all
purposes thereof and have the obligations, rights and benefits of a Lender
thereunder, having the Commitment set forth opposite such Lender's name in
Schedule 2.01 hereto. The initial Applicable Lending Office and initial address
for notices under the Credit Agreement for each New Lender is specified in the
Administrative Questionnaire heretofore returned by such Lender to the
Administrative Agent
Section 7. Miscellaneous. Except as provided herein, the Credit
Agreement shall remain unchanged and in full force and effect. This Amendment
No. 3 may be executed in any number of counterparts, all of which taken together
shall constitute one and the same amendatory instrument and any of the parties
hereto may execute this Amendment No. 3 by signing any such counterpart. This
Amendment No. 3 shall be governed by, and construed in accordance with, the law
of the State of New York.
IN WITNESS WHEREOF, this Amendment No. 3 has been duly executed as of
the date first written above.
SMITHFIELD FOODS, INC.
By /s/ Daniel G. Stevens
Name: Daniel G. Stevens
Title: Vice President
SUBSIDIARY GUARANTORS
CODDLE ROASTED MEATS, INC. BROWN'S OF CAROLINA LLC
GWALTNEY OF SMITHFIELD, LTD. CARROLL'S FOODS LLC
HANCOCK'S OLD FASHIONED CARROLL'S FOODS OF
COUNTRY HAM, INC. VIRGINIA LLC
IOWA QUALITY MEATS, LTD. CENTRAL PLAINS FARMS LLC
JOHN MORRELL & CO. CIRCLE FOUR LLC
LYKES MEAT GROUP, INC. MURPHY FARMS LLC
MOYER PACKING COMPANY QUARTER M FARMS LLC,
MURCO FOODS, INC. each a Delaware limited liability company
NORTH SIDE FOODS CORP.
PACKERLAND PROCESSING
COMPANY, INC. By MURPHY-BROWN LLC,
PACKERLAND HOLDINGS, INC. a Delaware limited liability company,
PATRICK CUDAHY INCORPORATED as a sole member of each
PREMIUM PORK, INC.
QUIK-TO-FIX FOODS, INC.
STADLER'S COUNTRY HAMS, INC. By JOHN MORRELL & CO.,
SUN LAND BEEF COMPANY a Delaware corporation,
SUNNYLAND, INC. as its sole member
THE SMITHFIELD COMPANIES, INC.
THE SMITHFIELD PACKING
COMPANY, INCORPORATED /s/ Daniel G. Stevens
STEFANO FOODS, INC. Name: Daniel G. Stevens
THE SMITHFIELD HAM AND PRODUCTS Title: Vice President
COMPANY, INCORPORATED
By /s/ Daniel G. Stevens
Name: Daniel G. Stevens
Title: Vice President
MURPHY-BROWN LLC, GREAT LAKES CATTLE CREDIT
a Delaware limited liability company COMPANY, LLC,
a Delaware limited liability company,
By JOHN MORRELL & CO., By PACKERLAND HOLDINGS,
a Delaware corporation, INC.,
as its sole member a Delaware corporation,
as its sole member
/s/ Daniel G. Stevens
Name: Daniel G. Stevens /s/ Daniel G. Stevens
Title: Vice President Name: Daniel G. Stevens
Title: Vice President
NEW LENDERS
COBANK, ACB
By /s/ Kenneth Winlid
Name: Kenneth Warlick
Title: VP
LENDERS
JPMORGAN CHASE BANK, ABN AMRO BANK N.V.
individually and as Administrative Agent
By /s/ Gary L. Spevack By______________________________
Name: Gary L. Spevack Name:
Title: Vice President Title:
By______________________________
Name:
Title:
BANK OF AMERICA, N.A. BANK OF TOKYO-MITSUBISHI
TRUST COMPANY
By /s/ William F. Sweeney By /s/ Spencer Hughes
Name: William F. Sweeney Name: Spencer Hughes
Title: Bank of America Title: Vice President
BNP PARIBAS CAPE FEAR FARM CREDIT, ACA
By /s/ Thomas H. Ambrose By /s/ Randy T. Pope
Name: Thomas H. Ambrose Name: Randy T. Pope
Title: Director Title: Vice President
By /s/ Peter Labric
Name: Peter Labric
Title: Central Region Manager
CIBC INC. COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK
B.A. "RABOBANK INTERNATIONAL",
NEW YORK BRANCH
By /s/ Dominic J. Sorresso
Name: Dominic J. Sorresso
Title: Executive Director
CIBC World Markets, as Agent By________________________________
Name:
Title:
By________________________________
Name:
Title:
CREDIT AGRICOLE INDOSUEZ MIZUHO CORPORATE BANK, LTD.
By_________________________________ By /s/ Robert Gallagher
Name: Name: Robert Gallagher
Title: Title: Vice President
By_________________________________
Name:
Title:
DRESDNER BANK FARM CREDIT BANK OF WICHITA
LATEINAMERIKA AG,
MIAMI AGENCY
By /s/ Travis W. Ball
By________________________________ Name: Travis W. Ball
Name: Title: Vice President
Title:
FARM CREDIT SERVICES FARM CREDIT SERVICES
OF AMERICA, PCA OF MID-AMERICA, PCA
By /s/ Timothy J. Healy By /s/ Steven R. Kluemper
Name: Timothy J. Healy Name: Steven R. Kluemper
Title: Vice President Title: Agribusiness Account
Executive
AGSTAR FINANCIAL SERVICES PCA WACHOVIA BANK, NATIONAL ASSOCIATION
d/b/a FCS Commercial Finance Group
By /s/ Anthony D. Braxton
By /s/ James M. Grafing Name: Anthony D. Braxton
Name: James M. Grafing Title: Director
Title: SVP - Syndicated Finance
GENERAL ELECTRIC CAPITAL HARRIS TRUST & SAVINGS BANK
CORPORATION
By /s/ C. Mark Smith By /s/ John R. Carley
Name: C. Mark Smith Name: John R. Carley
Title: Duly Authorized Signatory Title: Vice President
ING (U.S.) CAPITAL LLC SUMITOMO MITSUI BANKING
CORPORATION
By /s/ Daniel W. Lamprecht By /s/ Peter Knight
Name: Daniel W. Lamprecht Name: Peter Knight
Title: Managing Director Title: Joint General Manager
SUNTRUST BANK U.S. BANK NATIONAL ASSOCIATION
By /s/ Hugh E. Brown By /s/ Kathi Hatch
Name: Hugh E. Brown Name: Kathi Hatch
Title: Vice President Title: Assistant Vice President
By /s/ Lauren P. Carrigan
Name: Lauren P. Carrigan
Title: Vice President