This instrument prepared by and after recording mail to: Laura R. Lucas,
Esquire, McGuire, Woods, Battle & Boothe, 9000 World Trade Center, Norfolk,
VA 23510.
LOAN MODIFICATION AGREEMENT
This LOAN MODIFICATION AGREEMENT (this "Modification Agreement") is
made as of April 30, 1994 among SMITHFIELD FOODS, INC. a Delaware
corporation (the "Company"), CAROLINA FOOD PROCESSORS, INC., a Delaware
corporation (the "Guarantor"), THE SMITHFIELD PACKING COMPANY,
INCORPORATED, a Virginia corporation ("Packing") and NATIONSBANK OF
VIRGINIA, N.A. (the "Bank").
RECITALS
A. The Bank and the Company are parties to an Amended and Restated
Credit Agreement dated as of June 28, 1993 (the "Credit Agreement").
Pursuant to the Credit Agreement, the Company delivered to the Bank its
Amended and Restated Term Note dated as of June 28, 1993 (the "Note"). The
Note is guaranteed by the Guarantor pursuant to an Amended and Restated
Guarantee dated as of June 28, 1993 (the "Guarantee"). The Note and the
Guarantee are secured by (i) an Amended and Restated Deed of Trust and
Security Agreement dated as of June 28, 1993, among the Guarantor, TIM,
Inc., a North Carolina corporation, as Trustee, and the Bank, recorded in
the Office of the Register of Deeds for Bladen County, North Carolina (the
"Register's Office") in Deed Book 330 at page 45 (the "Deed of Trust") and
(ii) an Amended and Restated Security Agreement dated as of June 28, 1993,
between the Guarantor and the Bank (the "Security Agreement"). The Credit
Agreement, the Note, the Guarantee, the Deed of Trust, and the Security
Agreement, as any of them may be amended, supplemented, replaced, or
otherwise modified from time to time, are referred to collectively as the
"Loan Documents."
B. The Guarantor, Kinston Ham Products, Inc., a Delaware
corporation, and Smithfield-Wilson, Inc., a Delaware corporation
(collectively, the "Merging Corporations") plan to merge into Packing (the
"Merger") pursuant to a Plan and Agreement of Merger effective as of May 1,
1994. The effective date of the Merger is referred to as the "Merger
Date." Packing will be the surviving corporation in the Merger.
C. The parties now wish to amend the Loan Documents to provide for
the Merger.
AGREEMENT
The parties agree as follows:
1. Capitalized terms used herein and not otherwise defined shall
have the meanings set forth in the Loan Documents.
2. The definition of "Guarantor" in Section 1.1 of the Credit
Agreement is deleted and the following substituted therefor:
" "Guarantor": until the Merger Date, Carolina Food
Processors, Inc., a Delaware corporation and a wholly owned
Subsidiary of the Company; upon and after the Merger Date, The
Smithfield Packing Company, Incorporated, a Virginia corporation
and a wholly owned Subsidiary of the Company."
3. The following definitions are added to Section 1.1 of the Credit
Agreement:
" "Merger": the merger of Carolina Food Processors,
Inc., a Delaware corporation, Kinston Ham Products, Inc., a
Delaware corporation, and Smithfield-Wilson, Inc., a Delaware
corporation, into The Smithfield Packing Company, Incorporated, a
Virginia corporation, pursuant to the Plan and Agreement of
Merger effective as of May 1, 1994.
"Merger Date": the effective date of the Merger."
4. Section 6.4 of the Credit Agreement is deleted and the following
substituted therefor:
" 6.4 Prohibition of Fundamental Changes. Except for the
Merger and as permitted by the Note Purchase Agreement, enter
into any transaction of merger or consolidation or amalgamation,
or liquidate, wind up or dissolve itself (or suffer any
liquidation or dissolution), or convey, sell, lease, transfer or
otherwise dispose of, in one transaction or a series of
transactions, all or any part of its business or assets or stock
in a Subsidiary, whether now owned or hereafter acquired
(including, without limitation, receivables and leasehold
interests but excluding obsolete or worn out property, or
inventory disposed of in the ordinary course of business), or
acquire by purchase or otherwise all or substantially all the
business or assets of, or stock or other evidence of beneficial
ownership of, any Person, or make any material change in its
present method of conducting business."
5. Section 8 of the Deed of Trust is deleted and the following
substituted therefor:
" 8. Transfer or Mortgage of Premises. Except as the legal
or equitable title or ownership of the Premises is affected by
the merger (the "Merger") of the Guarantor, Kinston Ham Products,
Inc., a Delaware corporation, and Smithfield-Wilson, Inc., a
Delaware corporation, into The Smithfield Packing Company,
Incorporated, a Virginia corporation ("Packing"), pursuant to the
Plan and Agreement of Merger effective as of May 1, 1994, the
Guarantor will not voluntarily, or involuntarily by operation of
law, sell, convey, transfer, mortgage, encumber, lease or
otherwise dispose of or alienate the Premises or any part thereof
or any interest therein, whether legal or equitable, without the
prior written consent of the Bank, which consent shall be given
or not given in the Bank's sole discretion. Any change in the
legal or equitable title of the Premises or in the beneficial
ownership of the Premises (including, without limitation, the
sale, conveyance, transfer or other disposition of any interest
in the Guarantor), whether or not of record and whether or not
for consideration, shall be deemed to be a transfer of an
interest in the Premises."
6. Section 9 of the Deed of Trust is deleted and the following
substituted therefor:
" 9. Maintenance of Entity. The Guarantor will maintain its
existence in good standing with the same form and control as in
effect on the date hereof, provided however, that it shall not be
a default or event of default for the Guarantor to enter into the
Merger as set forth in Paragraph 8 herein. After the effective
date of the Merger, it is a requirement of this Deed of Trust
that Packing maintain its existence in good standing with the
same form and control as in effect on the effective date of the
Merger."
7. Section 6(m) of the Security Agreement is deleted and the
following substituted therefor:
" (m) Name Change. The Guarantor will not change its
name or conduct its business under any other name without giving
the Bank 120 days prior written notice and, in the event of any
name change, shall execute and deliver to the Bank appropriate
amendments to the UCC financing statement concurrently with the
date of such change in name. Notwithstanding the foregoing, it
shall not be a default or event of default hereunder for the
Guarantor to change its name in connection with its merger into
The Smithfield Packing Company, Incorporated, a Virginia
corporation, pursuant to the Plan and Agreement of Merger
effective as of May 1, 1994, so long as the Guarantor delivers
appropriate amendments to the UCC financing statements
concurrently with the effective date of the merger."
8. Section 9(b) of the Guarantee is deleted and the following
substituted therefor:
" (b) Engage in business of the same general type as now
conducted by the Guarantor, and preserve, renew and keep in full
force and effect its corporate existence and take all reasonable
action to maintain all rights, privileges and franchises
necessary or desirable in the normal conduct of its business,
provided however, that it shall not be a default or event of
default hereunder for the Guarantor to merge into The Smithfield
Packing Company, Incorporated, a Virginia corporation, pursuant
to the Plan and Agreement of Merger effective as of May 1, 1994;
comply with all contractual obligations and Requirements of Law
except to the extent that the failure to comply therewith could
not, in the aggregate, have a material adverse effect on the
business, operations, property or financial or other condition of
the Guarantor;"
9. The introductory paragraph of Section 10 of the Guarantee is
deleted and the following substituted therefor:
" 10. Except for and in connection with the merger of the
Guarantor into The Smithfield Packing Company, Incorporated, a
Virginia corporation, pursuant to the Plan and Agreement of
Merger effective as of May 1, 1994, the Guarantor hereby agrees
that, so long as the Agreement remains in effect or the Note or
any other Obligation remains outstanding, the Guarantor shall
not, directly or indirectly:"
10. Sections 10(g), 10(h), and 10(i) of the Guarantee are deleted and
the following substituted therefor:
" (g) Fail to comply with the terms of any financial
covenants applicable to the Guarantor under any loan agreements
or related documents, as such agreements or documents are amended
from time to time, in connection with any loans or credit
facilities made to the Guarantor or an affiliated entity by John
Hancock Mutual Life Insurance Company, a Massachusetts
corporation, its successors and assigns."
11. The approval of the Bank to the amendments and terms of this
Modification Agreement is subject to the following conditions precedent:
a. The Bank shall have received certified true copies of all
consents, licenses and approvals required or advisable in connection with
the Merger from all other lenders and Persons as may be required by the
terms and conditions of any loan documents, agreements, or contracts to
which any of the Company, Packing, or the Guarantor is a party, including
without limitation, written consents from each of the Purchasers, as
defined in and pursuant to (i) the Note Purchase Agreement dated as of
January 15, 1993, among the Company, the Guarantor, and the Purchasers, as
amended by the Amendment Agreement dated as of June 15, 1993, the "Note
Purchase Agreement" and (ii) the Current Note Agreements, as defined in the
Note Purchase Agreement. Such consents, licenses and approvals shall be in
full force and effect and be satisfactory in form and substance to the
Bank.
b. The Bank shall have received a certified copy of the
Certificate of Merger issued in connection with the Merger and such other
evidence of the consummation of the Merger as the Bank may reasonably
require.
c. Any documents (including, without limitation, this Loan
Modification Agreement, amendments to Uniform Commercial Code financing
statements and notices or certificates of merger) required to be filed,
registered or recorded in order to maintain, in favor of the Bank, a
perfected second Lien on the collateral described in the Security Documents
shall have been properly filed, registered or recorded in each office in
each jurisdiction in which such filings, registrations and recordations are
required; the Bank shall have received acknowledgment copies of all such
filings, registrations and recordations stamped by the appropriate filing,
registration or recording officer (or, in lieu thereof, other evidence
satisfactory to the Bank that all such filings, registrations and
recordations have been made); and the Bank shall have received evidence
that all necessary filing, subscription and inscription fees and all
recording and other similar fees, and all taxes and other expenses related
to such filings, registrations and recordings have been paid in full by or
on behalf of the Company.
d. The Bank shall have received an endorsement to its
mortgagee's title policy insuring this Loan Modification Agreement,
reflecting amendments to the Mortgage and containing such other matters as
may be deemed necessary by the Bank. The Bank shall also have received
evidence satisfactory to it that all premiums in respect of such
endorsements have been paid by or on behalf of the Company.
e. No Default or Event of Default shall have occurred and be
continuing hereunder or after giving effect to the Merger and this
Modification Agreement.
f. The Bank shall have received, such additional information and
materials which it shall have reasonably requested, including, without
limitation, copies of any debt agreements, security agreements and other
material contracts.
g. All corporate and other proceedings and all other documents
and legal matters in connection with the transactions contemplated by this
Modification Agreement shall be reasonably satisfactory in form and
substance to the Bank and its counsel.
12. The Company, Packing, and the Guarantor jointly and severally
represent and warrant that the consummation of the Merger will not violate
or breach any of the terms or covenants of any loans, agreements, or
contracts to which any of them are parties, except for agreements pursuant
to which proper consents have been delivered to the Bank as required by
paragraph 11.a. herein.
13. Packing acknowledges and agrees that upon and after the Merger
Date, it will assume all of the obligations and liabilities of the
Guarantor, including without limitation, all of the Guarantor's obligations
under the Loan Documents.
14. Upon and after the Merger Date, all references to Guarantor in
all of the Loan Documents will be deemed to be references to Packing.
15. TIM, Inc., trustee under the Deed of Trust, has executed this
Loan Modification Agreement at the instruction of the Bank.
16. All terms and conditions of the Loan Documents shall remain in
full force and effect, as specifically modified hereby.
Witness the signatures and seals on the following pages:
Attest: CAROLINA FOOD PROCESSORS, INC.
__________________________ By:__________________________
Title:____________________ Title:_______________________
STATE OF ___________________
COUNTY/CITY OF ___________________
I, ______________________________, a Notary Public of the
________________of______________, certify that Aaron D. Trub personally
came before me this day and acknowledged that he is the Secretary of
Carolina Food Processors, Inc., a Delaware corporation, and that by
authority duly given and as the act of the corporation, the foregoing
instrument was signed in its name by its Vice President, sealed with its
corporate seal and attested by himself as its Secretary.
Witness my hand and official seal or stamp, this ____ day of
_________________, 1994.
Notary Seal or Stamp __________________________________
Notary Public
My commission expires:____________________
Attest: TIM, INC.
__________________________ By:__________________________
Title:____________________ Title:_______________________
STATE OF ___________________
COUNTY/CITY OF ____________________
I, ______________________________, a Notary Public of the
________________of______________, certify that _________________ personally
came before me this day and acknowledged that he is the _________ of Tim,
Inc., a North Carolina corporation, and that by authority duly given and as
the act of the corporation, the foregoing instrument was signed in its name
by its ______________, sealed with its corporate seal and attested by
himself as its _________.
Witness my hand and official seal or stamp, this ____ day of
_________________, 1994.
Notary Seal or Stamp __________________________________
Notary Public
My commission expires:____________________
Attest: NATIONSBANK OF VIRGINIA, N.A.
_____________________ By:________________________ Allison L.
Gilliam
Title: Assistant Secretary Title:_____________________
STATE OF ____________________
COUNTY/CITY OF __________________
I, ______________________________, a Notary Public of the
________________of______________, certify that Allison L. Gilliam
personally came before me this day and acknowledged that she is the
Assistant Secretary of NationsBank of Virginia, N.A., a national banking
association, and that by authority duly given and as the act of the
association, the foregoing instrument was signed in its name by its
______________, sealed with its corporate seal and attested by herself as
its Assistant Secretary.
Witness my hand and official seal or stamp, this ____ day of
_________________, 1994.
Notary Seal or Stamp __________________________________
Notary Public
My commission expires:____________________
Attest: SMITHFIELD FOODS, INC.
By:__________________________
_____________________ Title:_______________________
Title:__________________
STATE OF ___________________
COUNTY/CITY OF ____________________
I, ______________________________, a Notary Public of the
________________of______________, certify that _________________ personally
came before me this day and acknowledged that he is the _______________ of
Smithfield Foods, Inc., a Delaware corporation, and that by authority duly
given and as the act of the corporation, the foregoing instrument was
signed in its name by its _________________, sealed with its corporate seal
and attested by himself as its ______________.
Witness my hand and official seal or stamp, this ____ day of
_________________, 1994.
Notary Seal or Stamp __________________________________
Notary Public
My commission expires:____________________
Attest: THE SMITHFIELD PACKING COMPANY,
INCORPORATED
By:__________________________
_____________________ Title:_______________________
Title:__________________
STATE OF ___________________
COUNTY/CITY OF ____________________
I, ______________________________, a Notary Public of the
________________of______________, certify that _________________ personally
came before me this day and acknowledged that he is the _______________ of
The Smithfield Packing Company, Incorporated, a Virginia corporation, and
that by authority duly given and as the act of the corporation, the
foregoing instrument was signed in its name by its _________________,
sealed with its corporate seal and attested by himself as its
______________.
Witness my hand and official seal or stamp, this ____ day of
_________________, 1994.
Notary Seal or Stamp __________________________________
Notary Public
My commission expires:____________________