[CONFORMED COPY]
THE SMITHFIELD PACKING COMPANY, INCORPORATED
SMITHFIELD FOODS, INC.
_________________________________________________
ASSUMPTION, WAIVER AND AMENDMENT AGREEMENT
_________________________________________________
Dated as of May 1, 1994
$15,000,000 9.80% Secured Notes Due August 1, 2003
$15,000,000 10.75% Secured Notes Due August 1, 2005
$25,000,000 8.41% Senior Secured Notes Due February 1, 2013
TABLE OF CONTENTS
PAGE
SECTION 1. PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . . 1
1.1 Background; Merger; Consent Agreement . . . . . . . . . . . 1
SECTION 2. ASSUMPTION; AMENDMENT; AFFIRMATION. . . . . . . . . . . . . 4
2.1 Assumption. . . . . . . . . . . . . . . . . . . . . . . . . 4
2.2 Amendments. . . . . . . . . . . . . . . . . . . . . . . . . 4
2.3 Affirmation . . . . . . . . . . . . . . . . . . . . . . . . 4
SECTION 3. WARRANTIES AND REPRESENTATIONS. . . . . . . . . . . . . . . 5
3.1 Organization, Existence and Authority . . . . . . . . . . . 5
3.2 Litigation. . . . . . . . . . . . . . . . . . . . . . . . . 5
3.3 Authorization, Execution and Enforceability . . . . . . . . 5
3.4 No Conflicts, etc . . . . . . . . . . . . . . . . . . . . . 5
3.5 Governmental Consent. . . . . . . . . . . . . . . . . . . . 6
3.6 Compliance with Law . . . . . . . . . . . . . . . . . . . . 6
3.7 Existence of Defaults . . . . . . . . . . . . . . . . . . . 6
3.8 Disclosure. . . . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 4. CONDITIONS. . . . . . . . . . . . . . . . . . . . . . . . . 6
4.1 Execution and Delivery of the Amended Financing Documents . 7
4.2 Collateral Items. . . . . . . . . . . . . . . . . . . . . . 7
4.3 No Default; Representations And Warranties True . . . . . . 8
4.4 Authorization of Transactions . . . . . . . . . . . . . . . 8
4.5 Opinion of Counsel. . . . . . . . . . . . . . . . . . . . . 8
4.6 Merger Documents. . . . . . . . . . . . . . . . . . . . . . 8
4.7 Expenses. . . . . . . . . . . . . . . . . . . . . . . . . . 8
4.8 North Carolina Certificate of Authority . . . . . . . . . . 9
4.9 Proceedings Satisfactory. . . . . . . . . . . . . . . . . . 9
SECTION 5. INTERPRETATION OF THIS AGREEMENT. . . . . . . . . . . . . . 9
5.1 Definitions . . . . . . . . . . . . . . . . . . . . . . . . 9
5.2 Section Headings, etc.. . . . . . . . . . . . . . . . . . .11
SECTION 6. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . .11
6.1 Governing Law . . . . . . . . . . . . . . . . . . . . . . .11
6.2 Successors and Assigns. . . . . . . . . . . . . . . . . . .11
6.3 Waivers and Amendments. . . . . . . . . . . . . . . . . . .11
6.4 Costs and Expenses. . . . . . . . . . . . . . . . . . . . .11
6.5 Duplicate Originals, Execution in Counterpart . . . . . . .11
6.6 Entire Agreement. . . . . . . . . . . . . . . . . . . . . .12
Annex 1 - Purchasers
Exhibit A - Waivers and Amendments to Existing 9.80% Note Agreement
Exhibit B - Waivers and Amendments to Existing 10.75% Note
Agreement
Exhibit C - Waivers and Amendments to Existing 8.41% Note Agreement
Exhibit D - Amendment to Existing 8.41% Security Agreement
Exhibit E - Amendment to Existing 8.41% Environmental
Indemnification Agreement
THE SMITHFIELD PACKING COMPANY, INCORPORATED
SMITHFIELD FOODS, INC.
ASSUMPTION, WAIVER AND AMENDMENT AGREEMENT
$15,000,000 9.80% Secured Notes Due August 1, 2003
$15,000,000 10.75% Secured Notes Due August 1, 2005
$25,000,000 8.41% Senior Secured Notes Due February 1, 2013
Dated as of May 1, 1994
To each of the Purchasers
listed on Annex 1 hereto
Ladies and Gentlemen:
THE SMITHFIELD PACKING COMPANY, INCORPORATED, a Virginia corporation
("Smithfield Packing"), and SMITHFIELD FOODS, INC., a Delaware corporation
("Smithfield Foods" and together with Smithfield Packing, individually, a
"Financing Party" and collectively, the "Financing Parties") each hereby agrees
with each of you as follows:
SECTION 1. PRELIMINARY STATEMENT
1.1 Background; Merger; Consent Agreement.
(a) Background.
(i) Smithfield Packing entered into that certain
Note Agreement, dated as of July 29, 1988 (as amended and as in
effect prior to the effectiveness of this Agreement, the
"Existing 9.80% Note Agreement," and, as amended by this
Agreement, the "Amended 9.80% Note Agreement") with John
Hancock Mutual Life Insurance Company ("John Hancock"),
pursuant to which Smithfield Packing issued and sold to John
Hancock an aggregate principal amount of Fifteen Million
Dollars ($15,000,000) of its 9.80% Secured Notes Due August 1,
2003 (the "9.80% Notes").
(ii) Smithfield Packing entered into that certain
Note Agreement, dated as of August 6, 1990 (as amended and as
in effect prior to the effectiveness of this Agreement, the
"Existing 10.75% Note Agreement," and, as amended by this
Agreement, the "Amended 10.75% Note Agreement") with John
Hancock, pursuant to which Smithfield Packing issued and sold
to John Hancock an aggregate principal amount of Fifteen
Million Dollars ($15,000,000) of its 10.75% Secured Notes Due
August 1, 2005 (the "10.75% Notes").
(iii) Carolina Food Processors, Inc. ("Carolina
Foods") and Smithfield Foods entered into separate Note
Purchase Agreements, each dated as of January 15, 1993
(collectively, as amended and as in effect prior to the
effectiveness of this Agreement, the "Existing 8.41% Note
Agreement," and, as amended by this Agreement, the "Amended
8.41% Note Agreement") with each of John Hancock, Massachusetts
Mutual Life Insurance Company ("MassMutual") and MML Pension
Insurance Company ("MML" and together with John Hancock and
MassMutual, individually, a "Purchaser" and collectively, the
"Purchasers"), pursuant to which Carolina Foods issued and sold
to John Hancock, MassMutual and MML an aggregate principal
amount of Twenty-Five Million Dollars ($25,000,000) of its
8.41% Senior Secured Notes Due February 1, 2013 (as in effect
prior to the effectiveness of this Agreement, the "Existing
8.41% Notes," and, as amended by this Agreement, the "Amended
8.41% Notes") and Smithfield Foods guarantied to each of John
Hancock, MassMutual and MML the "Guarantied Obligations" (as
defined in the Existing 8.41% Note Agreement).
(iv) Smithfield Foods entered into that certain
Amendment and Restatement of Existing 9.80% Guaranty Agreement,
dated as of July 29, 1988 (the "9.80% Guaranty Agreement")
pursuant to which Smithfield Foods guarantied to John Hancock
the "Guarantied Obligations" (as defined in the 9.80% Guaranty
Agreement).
(v) Smithfield Foods entered into that certain
Amendment and Restatement of Existing 10.75% Guaranty
Agreement, dated as of August 6, 1990 (the "10.75% Guaranty
Agreement"), pursuant to which Smithfield Foods guarantied to
John Hancock the "Guarantied Obligations" (as defined in the
10.75% Guaranty Agreement).
(vi) Kinston Ham Products, Inc. ("Kinston Ham")
entered into that certain Deed of Trust and Security Agreement,
dated as of December 27, 1978 (as amended, supplemented,
restated and consolidated, the "9.80%/10.75% NC Deed of Trust")
with Thomas E. Cabaniss and Laura R. Lucas, as trustees,
pursuant to which Kinston Ham granted to the trustees a lien
and security interest in the "Mortgaged Property" (as defined
in the 9.80%/10.75% NC Deed of Trust).
(vii) Carolina Foods entered into that certain Deed
of Trust, Security Agreement and Assignment of Rents and
Leases, dated as of January 15, 1993 (the "8.41% Deed of
Trust") with The Fidelity Company, as trustee, pursuant to
which Carolina Foods granted to the trustee a lien and security
interest in the "Property" (as defined in the 8.41% Deed of
Trust).
(viii) Carolina Foods entered into that certain
Security Agreement, dated as of January 15, 1993 (as in effect
prior to the effectiveness of this Agreement, the "Existing
8.41% Security Agreement," and, as amended by this Agreement,
the "Amended 8.41% Security Agreement") with NationsBank of
Virginia, N.A., as security trustee, pursuant to which Carolina
Foods granted to the security trustee a lien and security
interest in the "Collateral" (as defined in the Existing 8.41%
Security Agreement).
(ix) Carolina Foods entered into those certain
separate Environmental Indemnification Agreements, each dated
as of January 15, 1993 (collectively, as in effect prior to the
effectiveness of this Agreement, the "Existing 8.41%
Environmental Indemnification Agreement," and, as amended by
this Agreement, the "Amended 8.41% Environmental
Indemnification Agreement"), pursuant to which Carolina Foods
agreed to indemnify each of John Hancock, MassMutual and MML
against certain potential liabilities.
(x) The Existing 9.80% Note Agreement, the 9.80%
Notes, the Existing 10.75% Note Agreement, the 10.75% Notes,
the Existing 8.41% Note Agreement, the Existing 8.41% Notes,
the 9.80% Guaranty Agreement, the 10.75% Guaranty Agreement,
the 9.80%/10.75% NC Deed of Trust, the 8.41% Deed of Trust, the
Existing 8.41% Security Agreement and the Existing 8.41%
Environmental Indemnification Agreement are collectively
referred to herein as the "Existing Financing Documents." The
Amended 9.80% Note Agreement, the Amended 10.75% Note
Agreement, the Amended 8.41% Note Agreement, the Amended 8.41%
Notes, the Amended 8.41% Security Agreement and the Amended
8.41% Environmental Indemnification Agreement are collectively
referred to herein as the "Amended Financing Documents."
(b) Merger.
Pursuant to a Certificate of Agreement of Merger, filed with
the Secretary of State of the State of Delaware on April 27, 1994 (the
"Certificate of Agreement of Merger"), and Articles of Merger filed with
the Virginia State Corporation Commission on April 27, 1994 (the
"Articles of Merger"), Carolina Foods, Kinston Ham and
Smithfield-Wilson, Inc. were merged with and into Smithfield Packing
(the "Merger"). The effective date of the Merger is May 1, 1994.
(c) Consent Agreement.
The Financing Parties and the Purchasers entered into a Consent
Agreement, dated as of April 15, 1994 (the "Consent Agreement"),
pursuant to which (i) Smithfield Packing agreed, in connection with the
Merger, to succeed to and expressly assume all of the obligations,
liabilities and undertakings of (A) Carolina Foods under the Existing
8.41% Note Agreement, the Existing 8.41% Notes, the 8.41% Deed of Trust,
the Existing 8.41% Security Agreement and the Existing 8.41%
Environmental Indemnification Agreement and (B) Kinston Ham under the
9.80%/10.75% NC Deed of Trust, (ii) the Financing Parties agreed to
amend and modify the Existing Financing Documents and to do, or cause to
be done, on or prior to May 31, 1994, all things necessary in connection
with such amendments and modifications and (iii) in reliance upon the
undertakings of the Financing Parties as set forth in the preceding
clause (i) and clause (ii), the Purchasers consented to the Merger. In
furtherance of the foregoing, the Financing Parties and the Purchasers
desire to amend and modify the Existing Financing Documents to reflect
the aforesaid assumption and the amendments and modifications to the
Existing Financing Documents provided for herein.
SECTION 2. ASSUMPTION; AMENDMENT; AFFIRMATION
2.1 Assumption.
Smithfield Packing hereby authorizes its assumption of, and hereby
assumes and agrees to be fully liable in respect of, all of the liabilities,
obligations and undertakings of (i) Carolina Foods, whether now existing or
hereafter arising, provided for in (A) the Existing 8.41% Note Agreement and the
Existing 8.41% Notes, including, without limitation, the obligation to duly and
punctually pay the principal of (and Make-Whole Amount (as such term is defined
in the Existing 8.41% Note Agreement), if any), and interest on, the Existing
8.41% Notes (including any required prepayments of principal in respect of the
Existing 8.41% Notes) in accordance with the terms and provisions of the
Existing 8.41% Note Agreement and the Existing 8.41% Notes, (B) the 8.41% Deed
of Trust, (C) the Existing 8.41% Security Agreement and (D) the Existing 8.41%
Environmental Indemnification Agreement, and (ii) Kinston Ham, whether now
existing or hereafter arising, provided for in the 9.80%/10.75% NC Deed of
Trust. All amounts owing under, and evidenced by, the Existing 8.41% Notes as of
the Date of Assumption and Amendment shall continue to be outstanding under the
Existing 8.41% Notes, shall be the full and complete obligation of Smithfield
Packing and shall be payable in accordance with the provisions of the Existing
8.41% Note Agreement, without any exchange of the Existing 8.41% Notes or
notation thereon.
2.2 Amendments.
(a) Amendments to Existing Financing Documents. Each
Financing Party and, subject to the satisfaction of the conditions set
forth in Section 4, each Purchaser, hereby consents and agrees to the
amendments and modifications to the Existing Financing Documents to
which it is a party, as set forth in Exhibit A, Exhibit B, Exhibit C,
Exhibit D and Exhibit E, respectively. Each such amendment is
incorporated herein by reference as if set forth verbatim in this
Agreement. Notwithstanding the foregoing, (i) at the request of any of
the Purchasers or Financing Parties, each of the parties to each of the
Amended Financing Documents will set forth in a separate instrument
their respective agreements to the amendments to each of the Existing
Financing Documents as set forth herein and (ii) each of the Purchasers
and the Financing Parties acknowledges and agrees that each of the
Amended Financing Documents are, and shall remain, separate and
independent agreements.
(b) Effect of Amendments. Except as expressly provided
herein, (i) no terms or provisions of any agreement are modified or
changed by this Agreement, (ii) the terms of this Agreement shall not
operate as a waiver by the Purchasers of, or otherwise prejudice the
Purchasers' rights, remedies or powers under, any of the Existing
Financing Documents or under any applicable law and (iii) the terms and
provisions of the Existing Financing Documents shall continue in full
force and effect, as affected by this Agreement.
2.3 Affirmation.
Smithfield Foods hereby acknowledges and affirms all of its obligations
under the terms of the 9.80% Guaranty Agreement, the 10.75% Guaranty Agreement
and the Amended 8.41% Note Agreement.
SECTION 3. WARRANTIES AND REPRESENTATIONS
To induce the Purchasers to enter into this Agreement, each of
Smithfield Packing and Smithfield Foods warrants and represents to the
Purchasers that as of the Date of Assumption and Amendment:
3.1 Organization, Existence and Authority. Each of Smithfield
Packing and Smithfield Foods is a corporation duly organized, validly existing
and in good standing under the laws of its jurisdiction of incorporation.
Smithfield Packing is currently in the process of obtaining reinstatement of its
certificate of authority to transact business in the State of North Carolina.
The failure by Smithfield Packing to be in good standing as a foreign
corporation in the State of North Carolina does not and will not have a material
adverse effect on the business, prospects, profits, Properties or condition
(financial or otherwise) of Smithfield Packing, or the ability of Smithfield
Packing to perform its obligations set forth herein and under the Amended
Financing Documents. Each of Smithfield Packing and Smithfield Foods has all
requisite power and authority to execute and deliver this Agreement and to
perform its respective obligations hereunder.
3.2 Litigation. There are no proceedings pending, or to the
knowledge of either Smithfield Packing or Smithfield Foods threatened, against
or affecting Smithfield Packing or Smithfield Foods or any of their respective
Properties in any court or before any governmental authority or arbitration
board or tribunal that, either individually or in the aggregate, conflict with
or interfere with the ability of either Smithfield Packing or Smithfield Foods
to execute and deliver this Agreement and to perform its respective obligations
hereunder and under the Amended Financing Documents.
3.3 Authorization, Execution and Enforceability. The execution and
delivery by Smithfield Packing and Smithfield Foods of this Agreement and the
performance of their respective obligations hereunder and under the Amended
Financing Documents have been duly authorized by all necessary action on the
part of Smithfield Packing and Smithfield Foods. This Agreement constitutes a
valid and binding obligation of Smithfield Packing and Smithfield Foods,
enforceable in accordance with its terms, except that the enforceability hereof
may be:
(a) limited by bankruptcy, insolvency or other similar laws
affecting the enforceability of creditors' rights generally; and
(b) subject to the availability of equitable remedies.
3.4 No Conflicts, etc. Neither the execution and delivery by
Smithfield Packing and Smithfield Foods of this Agreement nor the performance by
Smithfield Packing and Smithfield Foods of their respective obligations
hereunder conflicts with, results in any breach in any of the provisions of,
constitutes a default under, violates, or results in the creation of any Lien
upon any Property of Smithfield Packing and Smithfield Foods under the
provisions of:
(a) any charter document, agreement with shareholders or
bylaws of Smithfield Packing or Smithfield Foods;
(b) any agreement, instrument or conveyance by which
Smithfield Packing or Smithfield Foods or any of their respective
Properties may be bound or affected; or
(c) any statute, rule or regulation or any order, judgment
or award of any court, tribunal or arbitrator by which Smithfield
Packing or Smithfield Foods or any of their respective Properties may be
bound or affected.
3.5 Governmental Consent. Neither the execution and delivery by
Smithfield Packing and Smithfield Foods of this Agreement nor the performance by
Smithfield Packing and Smithfield Foods of their respective obligations
hereunder, is such as to require a consent, approval or authorization of, or
filing, registration or qualification with, any governmental authority on the
part of Smithfield Packing or Smithfield Foods as a condition thereto under the
circumstances and conditions contemplated by this Agreement.
3.6 Compliance with Law. Neither Smithfield Packing nor Smithfield
Foods:
(a) is in violation of any law, ordinance, governmental
rule or regulation to which it is subject; or
(b) has failed to obtain any license, permit, franchise or
other governmental authorization necessary to the ownership of its
Property or to the conduct of its business;
which violation or failure to obtain might, either individually or in the
aggregate, have a material adverse effect on the business, prospects, profits,
Properties or condition (financial or otherwise) of Smithfield Packing or
Smithfield Foods, or the ability of Smithfield Packing or Smithfield Foods to
perform their respective obligations set forth herein and under the Amended
Financing Documents.
3.7 Existence of Defaults. No event has occurred and no condition
exists that constitutes a Default or an Event of Default (as such terms are
defined in each of the Existing Financing Documents), and no event has occurred
and no condition exists that would constitute a Default or an Event of Default
under any of the Amended Financing Documents.
3.8 Disclosure. Neither this Agreement nor any written statement
furnished by Smithfield Packing to the Purchasers in connection herewith
contains any untrue statement of a material fact or omits a material fact
necessary to make the statements contained therein or herein not misleading.
There is no fact that Smithfield Packing or Smithfield Foods has not disclosed
to the Purchasers in writing that has had or, so far as Smithfield Packing or
Smithfield Foods can now reasonably foresee, could reasonably be expected to
have a material adverse effect on the business, prospects, profits, Properties
or condition (financial or otherwise) of Smithfield Packing or Smithfield Foods,
or the ability of Smithfield Packing or Smithfield Foods to perform their
respective obligations set forth herein and under the Amended Financing
Documents.
SECTION 4. CONDITIONS
The amendments of the Existing Financing Documents shall become
effective on May 31, 1994 (the "Date of Assumption and Amendment"), and shall
apply retroactively to May 1, 1994, if and when, and only if and when, all of
the following conditions shall have been satisfied on or before the Date of
Assumption and Amendment, or, with respect to the conditions set forth in
Section 4.2(a)(ii), Section 4.2(b)(ii), Section 4.2(c) and Section 4.8, delivery
to the Purchasers of the items set forth therein no later than June 30, 1994:
4.1 Execution and Delivery of the Amended Financing Documents.
Each of Smithfield Packing and Smithfield Foods shall have executed and
delivered to the Purchasers a counterpart of each of the Amended Financing
Documents to which it is a party.
4.2 Collateral Items.
(a) 9.80%/10.75% NC Deed of Trust; Title Insurance.
(i) The Articles of Merger, certified by the Clerk
of the Virginia State Corporation Commission, and the
Certificate of Agreement of Merger, certified by the Secretary
of State of the State of Delaware, shall have been recorded in
the Lenoir County Land Records, to reflect the change in
ownership of the "Mortgaged Property" (as defined in the
9.80%/10.75% NC Deed of Trust), and
(ii) an endorsement to the title insurance policy
issued in connection with the 9.80%/10.75% NC Deed of Trust,
reflecting such change in ownership and amending the effective
date of such title insurance policy to the date of the
aforesaid recording of the Articles of Merger and Certificate
of Agreement of Merger, shall have been delivered to the
Purchasers.
(b) 8.41% Deed of Trust; Title Insurance.
(i) The Articles of Merger, certified by the Clerk
of the Virginia State Corporation Commission, and the
Certificate of Agreement of Merger, certified by the Secretary
of State of the State of Delaware, shall have been recorded in
the Bladen County Land Records, to reflect the change in
ownership of the "Property" (as defined in the 8.41% Deed of
Trust), and
(ii) an endorsement to the title insurance policy
issued in connection with the 8.41% Deed of Trust, reflecting
such change in ownership and amending the effective date of
such title insurance policy to the date of the aforesaid
recording of the Articles of Merger and Certificate of
Agreement of Merger, shall have been delivered to the
Purchasers.
(c) Financing Statements. Smithfield Packing shall have
filed all requisite financing statements necessary to continue the
security interests created by
(i) the 9.80%/10.75% NC Deed of Trust in the
"Mortgaged Property" (as defined in the 9.80%/10.75% NC Deed of
Trust),
(ii) the 8.41% Deed of Trust in the "Property" (as
defined in the 8.41% Deed of Trust), and
(iii) the Existing 8.41% Security Agreement in the
"Collateral" (as defined in the Existing 8.41% Security
Agreement),
and confirmation thereof shall have been received by the Purchasers.
4.3 No Default; Representations And Warranties True.
No Default or Event of Default (as such terms are defined in each of the
Amended Financing Documents) under the Amended Financing Documents shall exist;
the warranties and representations set forth in Section 3 shall be true and
correct on the Date of Assumption and Amendment; and each Purchaser shall have
received a certificate, dated as of the Date of Assumption and Amendment and
signed by the President or a Vice-President and the Controller, the Treasurer or
the Assistant Treasurer of each of Smithfield Packing and Smithfield Foods,
certifying that all of the conditions specified in this Section 4 have been
satisfied.
4.4 Authorization of Transactions.
Each of Smithfield Packing and Smithfield Foods shall have authorized,
by all necessary corporate action, the execution and delivery of each of the
Amended Financing Documents to which it is a party and the performance of all of
its respective obligations of, and the satisfaction of all closing conditions
pursuant to this Section 4 by, and the consummation of all transactions
contemplated by each of the Amended Financing Documents by, each of Smithfield
Packing and Smithfield Foods. Each Purchaser shall have received a certificate
from each of Smithfield Packing and Smithfield Foods, in form and substance
satisfactory to it and its special counsel, certifying the adoption of
resolutions by its respective board of directors authorizing such execution,
delivery, performance, satisfaction and consummation, which resolutions shall be
attached to each such certificate and shall be in full force and effect. Each
certificate shall indicate that there has been no resolution passed by the board
of directors of Smithfield Packing or Smithfield Foods, as the case may be,
which conflicts with, amends or rescinds such resolutions.
4.5 Opinion of Counsel.
The Purchasers shall have received from (a) McGuire Woods Battle &
Boothe, counsel for Smithfield Packing and Smithfield Foods, and (b) Ward and
Smith, P.A., special North Carolina counsel for Smithfield Packing, legal
opinions as to such matters as they may reasonably request.
4.6 Merger Documents.
The Purchasers shall have received true and correct copies of the
Certificate of Agreement of Merger, filed with the Secretary of State of the
State of Delaware on April 27, 1994, and Articles of Merger filed with the
Virginia State Corporation Commission on April 27, 1994.
4.7 Expenses.
Smithfield Packing shall have paid all costs and expenses of the
Purchasers relating to this Agreement and the transactions contemplated herein
in accordance with Section 6.4.
4.8 North Carolina Certificate of Authority.
The Purchasers shall have received a true and correct copy of a
Certificate of Authority from the Secretary of State of the State of North
Carolina certifying that Smithfield Packing is authorized to transact business
in the State of North Carolina.
4.9 Proceedings Satisfactory.
All proceedings taken in connection with the Amended Financing Documents
shall be satisfactory to the Purchasers and their special counsel. The
Purchasers and their special counsel shall have received copies of such
documents and papers as they may reasonably request in connection therewith, in
form and substance satisfactory to them.
SECTION 5. INTERPRETATION OF THIS AGREEMENT
5.1 Definitions.
The terms used in Exhibit A, Exhibit B, Exhibit C, Exhibit D and Exhibit
E and not defined therein shall have the meanings assigned to them in the
respective Existing Financing Document which such Exhibit purports to amend and
modify. As used in this Agreement, the following terms have the respective
meanings specified below or set forth in the Section hereof following such term
(such definitions, unless otherwise expressly provided, to be equally applicable
to both the singular and plural forms of the terms defined):
Agreement, this -- means this Agreement, as it may be amended from time
to time.
Amended 8.41% Environmental Indemnification Agreement -- Section
1.1(a)(ix).
Amended 8.41% Note Agreement -- Section 1.1(a)(iii).
Amended 8.41% Notes -- Section 1.1(a)(iii).
Amended 8.41% Security Agreement -- Section 1.1(a)(viii).
Amended Financing Documents -- Section 1.1(a)(x).
Amended 9.80% Note Agreement -- Section 1.1(a)(i).
Amended 10.75% Note Agreement -- Section 1.1(a)(ii).
Articles of Merger -- Section 1.1(b).
Carolina Foods -- Section 1.1(a)(iii).
Certificate of Agreement of Merger -- Section 1.1(b).
Consent Agreement -- Section 1.1(c).
Date of Assumption and Amendment -- Section 4.
8.41% Deed of Trust -- Section 1.1(a)(vii).
Existing 8.41% Environmental Indemnification Agreement -- Section
1.1(a)(ix).
Existing 8.41% Note Agreement -- Section 1.1(a)(iii).
Existing 8.41% Notes -- Section 1.1(a)(iii).
Existing 8.41% Security Agreement -- Section 1.1(a)(viii).
Existing Financing Documents -- Section 1.1(a)(x).
Existing 9.80% Note Agreement -- Section 1.1(a)(i).
Existing 10.75% Note Agreement -- Section 1.1(a)(ii).
Financing Parties -- introductory sentence.
John Hancock -- Section 1.1(a)(i).
Kinston Ham -- Section 1.1(a)(vi).
Lien -- has the meaning assigned to such term in each of the Existing
Financing Documents.
MassMutual -- Section 1.1(a)(iii).
MML -- Section 1.1(a)(iii).
Merger -- Section 1.1(b).
9.80%/10.75% Deed of Trust -- Section 1.1(a)(vi).
9.80% Guaranty Agreement -- Section 1.1(a)(iv).
9.80% Notes -- Section 1.1(a)(i).
Property -- has the meaning assigned to such term in each of the
Existing Financing Documents.
Purchasers -- Section 1.1(a)(iii).
Smithfield Foods -- introductory sentence.
Smithfield Packing -- introductory sentence.
10.75% Guaranty Agreement -- Section 1.1(a)(v).
10.75% Notes -- Section 1.1(a)(ii).
5.2 Section Headings, etc.
The titles of the Sections appear as a matter of convenience only, do
not constitute a part hereof and shall not affect the construction hereof. The
words "herein," "hereof," "hereunder" and "hereto" refer to this Agreement as a
whole and not to any particular Section or other subdivision.
SECTION 6. MISCELLANEOUS
6.1 Governing Law.
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE COMMONWEALTH OF VIRGINIA (WITHOUT
REGARD TO ANY CONFLICTS-OF-LAW PRINCIPLES).
6.2 Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the parties
hereto. The provisions hereof are intended to be for the benefit of all
holders, from time to time, of notes issued in connection with the related
Amended Financing Document and shall be enforceable by any such holder, whether
or not an express assignment to such holder of rights hereunder shall have been
made. Notwithstanding the foregoing, neither Smithfield Packing nor Smithfield
Foods shall assign its rights or delegate its obligations under the Amended
Financing Documents.
6.3 Waivers and Amendments. Neither this Agreement nor any term
hereof may be changed, waived, discharged or terminated orally, or by any action
or inaction, but only by an instrument in writing signed by each of the parties
signatory hereto. The terms and provisions of the Amended Financing Documents
may be further amended or modified in accordance with the provisions of the
Amended Financing Documents.
6.4 Costs and Expenses. On the Date of Assumption and Amendment,
Smithfield Packing will pay all costs and expenses of the Purchasers relating to
this Agreement, including, but not limited to, the statement for reasonable fees
and disbursements of the Purchasers' special counsel presented to Smithfield
Packing on the Date of Assumption and Amendment. Smithfield Packing will also
pay, upon receipt of any statement thereof, each additional statement for
reasonable fees and disbursements of the Purchasers' special counsel rendered
after the Date of Assumption and Amendment in connection with this Agreement.
6.5 Duplicate Originals, Execution in Counterpart. Two or more
originals of this Agreement may be signed by the parties, each of which shall be
an original but all of which together shall constitute one and the same
instrument. This Agreement may be executed in one or more counterparts and
shall be effective when at least one counterpart shall have been executed by
each party hereto, and each set of counterparts which, collectively, show
execution by each party hereto shall constitute one duplicate original.
6.6 Entire Agreement. This Agreement constitutes the final written
expression of all of the terms hereof and is a complete and exclusive statement
of those terms.
[Remainder of page intentionally left blank; next page is signature page.]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on their behalf by a duly authorized officer or agent thereof, as the
case may be, as of the date first above written.
Very truly yours,
THE SMITHFIELD PACKING COMPANY,
INCORPORATED
By /s/ George E. Hamilton, Jr.
Name: George E. Hamilton, Jr.
Title: President
SMITHFIELD FOODS, INC.
By /s/ Joseph W. Luter, III
Name: Joseph W. Luter, III
Title: President
JOHN HANCOCK MUTUAL LIFE
INSURANCE COMPANY
By /s/ Scott A. McFetridge
Name: Scott A. McFetridge
Title: Investment Officer
[Signature page for ASSUMPTION, WAIVER AND AMENDMENT AGREEMENT, dated as of May
1, 1994, with respect to the Existing Financing Documents of THE SMITHFIELD
PACKING COMPANY, INCORPORATED and SMITHFIELD FOODS, INC.]
MASSACHUSETTS MUTUAL LIFE
INSURANCE COMPANY
By /s/ Michael P. Hermsen
Name: Michael P. Hermsen
Title: Second Vice President
MML PENSION INSURANCE COMPANY
By /s/ Michael P. Hermsen
Name: Michael P. Hermsen
Title: Investment Officer
[Signature page for ASSUMPTION, WAIVER AND AMENDMENT AGREEMENT, dated as of May
1, 1994, with respect to the Existing Financing Documents of THE SMITHFIELD
PACKING COMPANY, INCORPORATED and SMITHFIELD FOODS, INC.]
ANNEX 1
PURCHASERS
John Hancock Mutual Life Insurance Company
200 Clarendon Street
Boston, Massachusetts 02117
Massachusetts Mutual Life Insurance Company
1295 State Street
Springfield, Massachusetts 01111
MML Pension Insurance Company
c/o Massachusetts Mutual Life Insurance Company
1295 State Street
Springfield, Massachusetts 01111
EXHIBIT A
WAIVERS AND AMENDMENTS TO EXISTING 9.80% NOTE AGREEMENT
5. Waiver of Section 6.5(b). John Hancock hereby reaffirms its
consent to the merger of Carolina Foods, Kinston Ham and Smithfield-Wilson, Inc.
with and into Smithfield Packing, as set forth in the Consent Agreement dated as
of April 15, 1994, among John Hancock and the other parties thereto, and agrees
that such consent shall operate as a waiver of the requirements set forth in
Section 6.5(b) of the Existing 9.80% Note Agreement.
2. Amendment to Section 6.7(a)(8). Section 6.7(a)(8) of the
Existing 9.80% Note Agreement is hereby amended to read in its entirety as
follows:
"(8) (i) the Deeds of Trust and related financing
statements, which shall constitute first and prior Liens on the
Mortgaged Property, and any Liens permitted by such
instruments, (ii) Liens granted to secure the Company's
obligations under the 10.75% Note due August 1, 2005 in the
original aggregate principal amount of Fifteen Million Dollars
($15,000,000), issued pursuant to the Note Agreement, dated as
of August 6, 1990, by and between the Company and John Hancock
and (iii) Liens granted to secure the Company's obligations
under the Assumed Debt, provided that such Liens comply with
the requirements set forth in the definition of Assumed Debt."
3. Amendment to Section 6.9. Section 6.9 of the Existing 9.80%
Note Agreement is hereby amended to read in its entirety as follows:
"6.9 Funded Debt.
The Company will not incur or in any manner be or
become liable in respect of any Funded Debt except (i) the 9.8%
Note, (ii) the 10.75% Note due August 1, 2005 in the original
aggregate principal amount of Fifteen Million Dollars
($15,000,000), issued pursuant to the Note Agreement, dated as
of August 6, 1990, by and between the Company and John Hancock,
(iii) the Assumed Debt and (iv) intercompany indebtedness to
SF Investments, Inc., in a principal amount not to exceed
Seventeen Million Five Hundred Thousand Dollars ($17,500,000),
so long as Smithfield Foods, Inc. directly or indirectly owns
and controls all of the capital stock of SF Investments, Inc."
4. Amendment to Section 6.11. Section 6.11 of the Existing 9.80%
Note Agreement is hereby amended to read in its entirety as follows:
"6.11 Net Worth.
The Company shall maintain its Net Worth in an amount
which, at all times, is at least Seventy-Five Million Dollars
($75,000,000)."
5. Amendment to Section 6.13. Section 6.13 of the Existing 9.80%
Note Agreement is hereby amended to read in its entirety as follows:
"6.13 Debt Ratio.
The Company will not at any time permit the ratio of
its Net Tangible Assets to its Funded Debt to be less than (i)
1.8 to 1.0 through April 28, 1996 and (ii) 2.0 to 1.0
commencing April 29, 1996."
6. Amendment to Section 9.1. Section 9.1 of the Existing 9.80%
Note Agreement is hereby amended by adding the following definition so as to
preserve the alphabetical ordering of the definitions set forth therein:
"Assumed Debt -- means the following obligations of
Carolina Food Processors, Inc. assumed by the Company pursuant to a
merger of Carolina Food Processors, Inc. with and into the Company as of
May 1, 1994:
(1) obligations under the 8.41% Senior
Secured Notes due February 1, 2013 in the original aggregate
principal amount of Twenty-Five Million Dollars ($25,000,000),
issued pursuant to the Note Purchase Agreement, dated as of
January 15, 1993, by and among Carolina Food Processors, Inc.,
the Guarantor and each of the purchasers listed on Annex 1
thereto;
(2) the guaranty of the obligations of the
Guarantor under a term loan by NationsBank of Virginia, N.A. to
the Guarantor so long as (x) the aggregate principal amount of
such obligations does not exceed Twenty-Five Million Dollars
($25,000,000), (y) any Liens granted in connection therewith
are junior to the Liens permitted under clause (a)(8)(i) and
clause (a)(8)(ii) of Section 6.7 and clause (1) of this
definition and (z) such obligations are repaid in full on or
prior to September 30, 1998; and
(3) a term loan by MetLife Capital
Corporation to Carolina Food Processors, Inc. so long as (x)
the aggregate principal amount of such obligations does not
exceed Two Million Eight Hundred Thousand Dollars ($2,800,000),
(y) any Lien granted in connection therewith only covers a
certain backup power generation unit entitled the Project Title
Generator System (project #9303C) acquired with the proceeds of
such term loan and does not extend to any other Property of the
Company and (z) such obligations are repaid in full on or prior
to August 30, 1998."
EXHIBIT B
WAIVERS AND AMENDMENTS TO EXISTING 10.75% NOTE AGREEMENT
1. Waiver of Section 6.5(b). John Hancock hereby reaffirms its
consent to the merger of Carolina Foods, Kinston Ham and Smithfield-Wilson, Inc.
with and into Smithfield Packing, as set forth in the Consent Agreement dated as
of April 15, 1994, among John Hancock and the other parties thereto, and agrees
that such consent shall operate as a waiver of the requirements set forth in
Section 6.5(b) of the Existing 10.75% Note Agreement.
2. Amendment to Section 6.7(a)(8). Section 6.7(a)(8) of the
Existing 10.75% Note Agreement is hereby amended to read in its entirety as
follows:
"(8)(i) the Deeds of Trust and related financing
statements, which shall constitute first and prior Liens on the
Mortgaged Property, and any Liens permitted by such
instruments, (ii) Liens granted by the Company to secure the
obligations of the Company under the 9.8% Note due August 1,
2003, issued pursuant to the Note Agreement, dated as of July
29, 1988, by and between the Company and John Hancock and (iii)
Liens granted to secure the Company's obligations under the
Assumed Debt, provided that such Liens comply with the
requirements set forth in the definition of Assumed Debt."
3. Amendment to Section 6.9. Section 6.9 of the Existing 10.75%
Note Agreement is hereby amended to read in its entirety as follows:
"6.9 Funded Debt.
The Company will not incur or in any manner be or
become liable in respect of any Funded Debt except (i) the
10.75% Note, (ii) the 9.8% Note due August 1, 2003 in the
original aggregate principal amount of Fifteen Million Dollars
($15,000,000), issued pursuant to the Note Agreement, dated as
of July 29, 1988, by and between the Company and John Hancock,
(iii) the Assumed Debt and (iv) intercompany indebtedness to
SF Investments, Inc., in a principal amount not to exceed
Seventeen Million Five Hundred Thousand Dollars ($17,500,000),
so long as Smithfield Foods, Inc. directly or indirectly owns
and controls all of the capital stock of SF Investments, Inc."
4. Amendment to Section 6.11. Section 6.11 of the Existing 10.75%
Note Agreement is hereby amended to read in its entirety as follows:
"6.11 Net Worth.
The Company shall maintain its Net Worth in an amount
which, at all times, is at least Seventy-Five Million Dollars
($75,000,000)."
5. Amendment to Section 6.13. Section 6.13 of the Existing 10.75%
Note Agreement is hereby amended and restated to read in its entirety as
follows:
"6.13 Debt Ratio.
The Company will not at any time permit the ratio of
its Net Tangible Assets to its Funded Debt to be less than (i)
1.8 to 1.0 through April 28, 1996 and (ii) 2.0 to 1.0
commencing April 29, 1996."
6. Amendment to Section 9.1. Section 9.1 of the Existing 10.75%
Note Agreement is hereby amended by adding the following definition so as to
preserve the alphabetical ordering of the definitions set forth therein:
"Assumed Debt -- means the following obligations of
Carolina Food Processors, Inc. assumed by the Company pursuant to a
merger of Carolina Food Processors, Inc. with and into the Company as of
May 1, 1994:
(1) obligations under the 8.41% Senior
Secured Notes due February 1, 2013 in the original aggregate
principal amount of Twenty-Five Million Dollars ($25,000,000),
issued pursuant to the Note Purchase Agreement, dated as of
January 15, 1993, by and among Carolina Food Processors, Inc.,
the Guarantor and each of the purchasers listed on Annex 1
thereto;
(2) the guaranty of the obligations of the
Guarantor under a term loan by NationsBank of Virginia, N.A. to
the Guarantor so long as (x) the aggregate principal amount of
such obligations does not exceed Twenty-Five Million Dollars
($25,000,000), (y) any Liens granted in connection therewith
are junior to the Liens permitted under clause (a)(8)(i) and
clause (a)(8)(ii) of Section 6.7 and clause (1) of this
definition and (z) such obligations are repaid in full on or
prior to September 30, 1998; and
(3) a term loan by MetLife Capital
Corporation to Carolina Food Processors, Inc. so long as (x)
the aggregate principal amount of such obligations does not
exceed Two Million Eight Hundred Thousand Dollars ($2,800,000),
(y) any Lien granted in connection therewith only covers a
certain backup power generation unit entitled the Project Title
Generator System (project #9303C) acquired with the proceeds of
such term loan and does not extend to any other Property of the
Company and (z) such obligations are repaid in full on or prior
to August 30, 1998."
EXHIBIT C
WAIVERS AND AMENDMENTS TO EXISTING 8.41% NOTE AGREEMENT
1. Waiver of Section 7.4(a). Each of John Hancock, MassMutual and
MML hereby reaffirms its consent to the merger of Carolina Foods, Kinston Ham
and Smithfield-Wilson, Inc. with and into Smithfield Packing, as set forth in
the Consent Agreement dated as of April 15, 1994, among John Hancock,
MassMutual, MML and the other parties thereto, and agrees that such consent
shall operate as a waiver of the requirements set forth in Section 7.4(a) of the
Existing 8.41% Note Agreement.
2. Amendment to Section 7.2(a). Section 7.2(a) of the Existing
8.41% Note Agreement is hereby amended to read in its entirety as follows:
"(a) Property -- maintain its Property in good condition,
ordinary wear and tear excepted, and make all necessary
renewals, replacements, additions, betterments and improvements
thereto; and, in addition to the foregoing, the Company will,
during each year commencing January 1, 1994 and during each
year thereafter, either expend or invest an amount equal to at
least fifty percent (50%) of Depreciation for the then most
recently ended fiscal year of the Company on repairs,
maintenance or capital improvements to the "Property" (as such
term is defined in the Deed of Trust);"
3. Amendment to Section 7.8(a). Section 7.8(a) of the Existing
8.41% Note Agreement is hereby restated to read in its entirety as follows:
"(a) Company Debt Ratio. The Company will not at
any time permit the ratio of its Net Tangible Assets to its
Funded Debt to be less than (i) 1.8 to 1.0 through April 28,
1996 and (ii) 2.0 to 1.0 commencing April 29, 1996."
4. Amendment to Section 7.10(a). Section 7.10(a) of the Existing
8.41% Note Agreement is hereby amended to read in its entirety as follows:
"(a) Company Net Worth. The Company will not at any
time permit Tangible Net Worth of the Company to be less than
Seventy-Five Million Dollars ($75,000,000)."
5. Amendments to Section 10.1.
(a) Section 10.1 of the Existing 8.41% Note Agreement is
hereby amended by replacing the definition of "Company" with the
following:
"Company -- means The Smithfield Packing Company,
Incorporated, a Virginia corporation."
(b) Section 10.1 of the Existing 8.41% Note Agreement is
hereby amended by adding the following definitions so as to preserve the
alphabetical ordering of the definitions set forth therein:
"Current Liabilities -- means, with respect to any
Person, at any time, the amount of liabilities that must be
paid or satisfied (or normally would be paid or satisfied)
within one year (excluding deferred taxes) and which would be
shown on a balance sheet of such Person at such time."
"Depreciation -- means, for any fiscal year of the
Company, the amount shown on the Company's annual statement of
income as depreciation of its property, plant and equipment for
such fiscal year."
"Net Tangible Assets -- means, with respect to any
Person, at any time, the result of
(a) the net book value (after deducting
related depreciation, obsolescence, amortization,
valuation and other proper reserves) of the Tangible
Assets of such Person, as would be shown on a balance
sheet of such Person at such time; minus
(b) an amount equal to the Current
Liabilities of such Person at such time."
6. Amendment to Section 10.5. Section 10.5 of the Existing 8.41%
Note Agreement is hereby amended to read in its entirety as follows:
"10.5 Governing Law.
THIS AGREEMENT AND THE NOTES SHALL BE GOVERNED BY, AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, INTERNAL VIRGINIA
LAW."
The equivalent provision in the Existing 8.41% Notes shall be deemed to be
amended in accordance with the foregoing amendment to Section 10.5.
7. References to the "Company".
All references to the "Company" in the Existing 8.41% Note Agreement and
the Existing 8.41% Notes shall be deemed a reference to the "Company," as
amended pursuant to Paragraph 5(a) of this Exhibit C.
EXHIBIT D
AMENDMENT TO EXISTING 8.41% SECURITY AGREEMENT
1. Amendment to Section 1.1. Section 1.1 of the Existing 8.41%
Security Agreement is hereby amended by replacing the definition of "Company"
with the following:
"Company -- means The Smithfield Packing Company,
Incorporated, a Virginia corporation."
2. References to the "Company".
All references to the "Company" in the Existing 8.41% Security Agreement
shall be deemed a reference to the "Company," as amended pursuant to Paragraph 1
of this Exhibit D. EXHIBIT E
AMENDMENT TO EXISTING 8.41% ENVIRONMENTAL INDEMNIFICATION AGREEMENT
1. Amendment. The Existing 8.41% Environmental Indemnification
Agreement is hereby amended by replacing Carolina Food Processors, Inc. with The
Smithfield Packing Company, Incorporated as the "Grantor." All references to
the "Grantor" in the Existing 8.41% Environmental Indemnification Agreement
shall be deemed a reference to The Smithfield Packing Company, Incorporated.