EXECUTION COUNTERPART
FIRST AMENDMENT TO CREDIT AGREEMENT
This FIRST AMENDMENT TO CREDIT AGREEMENT (this "Agreement" or this
"Amendment"), dated as of July 29, 1996, is entered into by and among GWALTNEY
OF SMITHFIELD, LTD., a Delaware corporation (for itself and as successor by
merger to Esskay, Inc) ("Gwaltney"), THE SMITHFIELD PACKING COMPANY,
INCORPORATED, a Virginia corporation ("Packing"), PATRICK CUDAHY INCORPORATED, a
Delaware corporation ("Cudahy") BROWN'S OF CAROLINA, INC., a North Carolina
corporation ("Brown's") and JOHN MORRELL & CO., a Delaware Corporation
("Morrell"; Gwaltney, Packing, Cudahy, Brown's and Morrell being individually
referred to as a "Borrower" and collectively referred to as the "Borrowers"),
and COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A., "Rabobank
Nederland", New York Branch (individually, "Rabobank"), as Agent for the Banks
(the "Agent"), and each financial institution a party hereto (being individually
referred to as a "Bank" and collectively referred to as the "Banks") agree as
follows:.
PRELIMINARY STATEMENTS
(1) The Borrowers, the Agent and the Lenders have entered into a
Fourth Amended, Restated and Continued Credit Agreement, dated as of April 30,
1996 (as amended, the "Credit Agreement"). Capitalized terms used herein but not
defined herein shall have the meanings assigned to such terms in the Credit
Agreement, as amended hereby.
(2) Effective June 13, 1996, Esskay, Inc., a Delaware corporation and
a Borrower under the Credit Agreement was merged into Gwaltney.
(3) The parties hereto desire to amend the Credit Agreement to extend
the Facility A Termination Date and the Facility B Termination Date.
NOW, THEREFORE, in consideration of the premises, the parties hereto
agree as follows:
ARTICLE I
FIRST AMENDMENT TO CREDIT AGREEMENT
SECTION 1.1. Amendment to Credit Agreement.
(a) The Credit Agreement shall be, effective as of the date hereof and
subject to the satisfaction of the conditions precedent set forth in Section
2.01 hereof, amended as follows:
(i) The date "July 29, 1996" in the fourth line of section
1.01(a) as the definition "Facility A Termination Date" is deleted and
the date August 28, 1996 is substituted therefor.
(ii) The date "July 29, 1997" in the fifth line of section
1.01(b) as the definition "Facility B Termination Date" is deleted and
the date August 28, 1997 is substituted therefor.
(iii) The date "July 30, 1996" in the first line of section
5.01(f) as the date prior to which the mergers of Morrell's
subsidiaries as described therein will be effected is deleted and the
date October 30, 1996 is substituted therefor.
(iv) Schedule 6.01(d) to the Credit Agreement is deleted
in its entirety and the Schedule 6.01(d) attached hereto is
substituted therefor.
(b) The Credit Agreement shall be, effective as of July 31, 1996 and
subject to the consummation of the closings of the Guarantor's sale of Notes in
the aggregate stated principal amount of $199,707,354 pursuant to certain Note
Purchase Agreements dated as of July 15, 1996 among the Guarantor and the
purchasers thereunder and further subject to the satisfaction of the conditions
precedent set forth in Section 2.01 hereof, further amended as follows:
(i) The date "August 28, 1996" in the fourth line of section
1.01(a) as the definition "Facility A Termination Date" (as such
definition shall have been amended by Section 1.01(a)(i) hereof) is
deleted and the date July 28, 1997 is substituted therefor.
(ii) The date "August 28, 1997" in the fifth line of section
1.01(b) as the definition "Facility B Termination Date" (as such
definition shall have been amended by Section 1.01(b)(i) hereof) is
deleted and the date July 29, 1998 is substituted therefor.
ARTICLE II
CONDITIONS PRECEDENT
SECTION 2.1. Conditions of Effectiveness. This First Amendment shall
become effective on the date when, and only when, (a) the Agent shall have
received counterparts of this Amendment duly executed by each of the parties
hereto, (b) all outstanding fees and expenses of counsel to the Agent and the
Lenders shall have been paid in full to the extent due and payable after giving
effect to this Amendment, (c) the representations and warranties contained
herein shall be true on and as of the date of the effectiveness of this
Amendment (the "Effective Date"), there shall exist on the Effective Date, no
Event of Default or Default and there shall exist no material adverse change in
the financial condition, business operation or prospects of the Guarantor or its
Subsidiaries since April 28, 1996, and the Borrowers are in compliance with the
Borrowing Base requirements; and (d) the Agent additionally shall have received
all of the following documents, each (unless otherwise indicated) being dated
the date hereof, in form and substance satisfactory to the Agent and the
Lenders:
(i) Copies of all documents evidencing all requisite corporate
action of each Borrower (including any and all resolutions of the
Board of Directors of each Borrower) authorizing the execution,
delivery and performance of this First Amendment and the matters
contemplated hereby, certified by the Secretary or Assistant Secretary
of each Borrower;
(ii) Duly executed copies of the First Amendment to Guaranty,
in substantially the form of Exhibit A hereto;
(iii) A favorable opinion of McQuire, Woods, Battle & Booth,
special counsel for the Borrowers, in form and substance satisfactory
to the Agent and the Lenders.
(iv) An Officer's Certificate of each Borrower, dated the
Effective Date, to the effect that the representations and warranties
contained herein shall be true on and as of the Effective Date; there
shall exist on the Effective Date, no Event of Default or Default;
there shall exist no material adverse change in the financial
condition, business operation or prospects of such Borrower since
April 28, 1996; and the Borrowers are in compliance with the Borrowing
Base requirements; and
(v) Such other documents, instruments, approvals (and, if
required by the Agent, certified duplicates of executed copies
thereof) or opinions as the Agent or any Lender may reasonably
request.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1. Representations and Warranties of the Borrowers. (a) Each
of the Borrowers hereby repeats and confirms each of the representations and
warranties made by it in the Credit Agreement, as amended hereby, as though made
on and as of the date hereof, with each reference therein to "this Agreement",
"hereof", "hereunder", "thereof", "thereunder" and words of like import being
deemed to be a reference to the Credit Agreement and the Loan Documents, in each
case, as amended hereby.
(b) Each of the Borrowers further represents and warrants as
follows:
(i) The execution, delivery and performance by such Borrower of
this First Amendment are within its corporate powers, have been duly
authorized by all necessary corporate action and do not contravene (A)
such Borrower's charter or by-laws, (B) any law or (C) any legal or
contractual restriction binding on or affecting such Borrower; and
such execution, delivery and performance do not or will not result in
or require the creation of any Lien upon or with respect to any of its
properties.
(ii) No governmental approval is required for the due execution,
delivery and performance by such Borrower of this First Amendment.
(iii) This First Amendment constitutes the legal, valid and
binding obligations of such Borrower enforceable against such Borrower
in accordance with its terms.
ARTICLE IV
MISCELLANEOUS
SECTION 4.1. Reference to and Effect on the Loan Documents. (a) Upon
the effectiveness of this First Amendment, on and after the date hereof, each
reference in the Credit Agreement to "this Agreement", "hereunder", "hereof" or
words of like import referring to the Credit Agreement and each reference in the
other Loan Documents to "the Credit Agreement", "thereunder", "thereof" or words
of like import referring to the Credit Agreement, shall mean and be a reference
to the Credit Agreement, as amended hereby.
(b) Except as specifically amended above, the Credit Agreement and the
Notes and all other Loan Documents, are and shall continue to be in full force
and effect and are hereby in all respects ratified and confirmed. Without
limiting the generality of the foregoing, each Security Agreement and all of the
Collateral described therein do and shall continue to secure the payment of all
obligations of the Borrowers under the Credit Agreement, the Notes and the other
Loan Documents, in each case, as amended hereby.
(c) The execution, delivery and effectiveness of this First Amendment
shall not operate as a waiver of any right, power or remedy of any Lender or the
Agent under any of the Loan Documents, nor constitute a waiver of any provision
of any of the Loan Documents.
SECTION 4.2. Costs and Expenses/Fees. The Borrowers jointly and
severally agree to pay on demand all costs and expenses incurred by the Agent in
connection with the preparation, execution and delivery of this First Amendment
and the other documents to be delivered hereunder and thereunder, including,
without limitation, the reasonable fees and out-of-pocket expenses of counsel
for the Agent with respect thereto and with respect to advising the Agent and
the Lenders as to their rights and responsibilities under this Amendment. The
Borrowers jointly and severally further agree to pay on demand all costs and
expenses, if any (including, without limitation, reasonable counsel fees and
expenses of counsel), incurred by the Agent and the Lenders in connection with
the enforcement (whether through negotiations, legal proceedings or otherwise)
of this First Amendment and the other documents to be delivered hereunder and
thereunder, including, without limitation, counsel fees and expenses in
connection with the enforcement of rights under this Section 4.02.
SECTION 4.3. Execution in Counterparts. This Amendment may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed to be
an original and all of which taken together shall constitute but one and the
same instrument.
SECTION 4.4. Governing Law. This Amendment shall be governed by,
and construed in accordance with, the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this First Amendment
to be executed by their respective officers thereunto duly authorized, as of the
date first above written.
GWALTNEY OF SMITHFIELD, LTD.
By /s/ Aaron D. Trub
Title: Secretary and Treasurer
THE SMITHFIELD PACKING
COMPANY, INCORPORATED
By /s/ Aaron D. Trub
Title: Secretary and Treasurer
PATRICK CUDAHY INCORPORATED
By /s/ Aaron D. Trub
Title: Secretary and Treasurer
BROWN'S OF CAROLINA, INC.
By /s/ Aaron D. Trub
Title: Secretary and Treasurer
JOHN MORRELL & CO.
By /s/ Aaron D. Trub
Title: Secretary and Treasurer
COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK,
B.A., "RABOBANK NEDERLAND",
NEW YORK BRANCH,
individually and as Agent
By /s/ Joanna Solowski
Authorized Officer
By /s/ Barbara Hyland
Authorized Officer
NATIONSBANK, N.A.
By /s/ Michael R. Williams
Title: Senior Vice President
DG BANK, DEUTSCHE
GENOSSENSCHAFTSBANK,
CAYMAN ISLANDS BRANCH
By /s/ [SIGNATURE ILLEGIBLE]
Title: Senior Vice President
By /s/ [SIGNATURE ILLEGIBLE]
Title: Assistant Vice President
THE SUMITOMO BANK, LIMITED,
NEW YORK BRANCH
By /s/ [SIGNATURE ILLEGIBLE]
Title: Joint General Manager
SUNTRUST BANK, ATLANTA
By /s/ Robert Honeycutt
Title: Assistant Vice President
By /s/ Gregory L. Cannon
Title: Vice President
CAISSE NATIONALE DE
CREDIT AGRICOLE
By_________________________________
Title:
BOATMEN'S FIRST NATIONAL
BANK OF KANSAS CITY
By /s/ Ellen Isch
Title: Vice President
FARM CREDIT SERVICES OF THE MIDLANDS, PCA
PCA
By /s/ R. Cleary
Title: Vice President
The undersigned as Guarantor under its Fourth Amended, Restated and
Continued Guaranty dated as of April 30, 1996, as amended by Amendment No.1 to
Guaranty dated as of July 26, 1996 and Amendment No. 2 to Guaranty dated as of
July 29, 1996 (each a "Guaranty") hereby consents and agrees to the foregoing
First Amendment. The undersigned hereby confirms and agrees that its Guaranty
is, and shall continue to be, in full force and effect and is hereby ratified
and confirmed in all respects except upon the effectiveness of the First
Amendment, each reference in the undersigned's Guaranty to "the Credit
Agreement", "thereunder", "thereof" or words of like import referring to the
Credit Agreement shall mean and be a reference to the Credit Agreement as
amended by such First Amendment. The undersigned agrees that no consent or
acknowledgment by the undersigned is or shall be required with respect to any
other amendment or modification of the Credit Agreement or any other Loan
Document in order to ensure the continued effectiveness and enforceability of
its Guaranty.
SMITHFIELD FOODS, INC.
By: /s/ Aaron D. Trub
Name: Aaron D. Trub
Title: Vice President, Secretary
and Treasurer