EXECUTION COUNTERPART
AMENDMENT NO. 1 TO GUARANTY
This AMENDMENT AGREEMENT NO. 1 TO GUARANTY (this "Agreement" or this
"Amendment"), dated as of July 26, 1996, is entered into by and between
SMITHFIELD FOODS, INC., a Delaware Corporation (the "Guarantor")and
COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A., "Rabobank Nederland",
New York Branch, 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 Agent and the Banks have entered into that certain Fourth Amended,
Restated and Continued Revolving Credit Agreement dated as of April 30, 1996 (as
so amended hereby and from time to time hereafter, the "Credit Agreement", the
terms defined therein and not otherwise defined herein being used herein as
therein defined) among Gwaltney of Smithfield, Ltd. ("Gwaltney"), the Smithfield
Packing Company, Incorporated ("Packing"), Patrick Cudahy Incorporated
("Cudahy"), Esskay, Inc. ("Esskay), Brown's of Carolina, Inc.("Brown's") and
John Morrell & Co. ("Morrell"; Gwaltney, Packing, Cudahy, Brown's and Morrell
being individually referred to as a "Borrower" and collectively referred to as
the "Borrowers").
(2) Effective June 13, 1996, Esskay was merged into Gwaltney.
(3) Pursuant to that certain Fourth Amended, Restated and Continued
Guaranty dated as of April 30, 1996 made by the Guarantor in favor of the Agent,
as Agent of the Banks (the "Guaranty"), the Guarantor unconditionally guaranteed
the obligations of the Borrowers under the Credit Agreement.
(4) As requested by the Borrowers and the Guarantor, the Banks have agreed
to amend certain covenants in the Guaranty.
NOW, THEREFORE, in consideration of the premises, the parties hereto agree
as follows:
ARTICLE I
FIRST AMENDMENT TO GUARANTY
SECTION 1.1. Amendments to Guaranty The Guaranty 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:
(a) Amendments to Section 6. Clauses (i) and (j) of Section 6 shall be
amended in their entirety to read as follows:
(i) Liens, Etc. Not create or suffer to exist, or permit any
subsidiary to create or suffer to exist, any lien, security interest
or other charge or encumbrance, or any other type of preferential
arrangement, upon or with respect to any of its properties or its
subsidiaries', whether now owned or hereafter acquired, or assign any
right to receive income, in each case to secure any Debt (as defined
below) of any person or entity, other than (i) purchase money liens or
purchase money security interests upon or in any property acquired or
held by the Guarantor or any of its subsidiaries in the ordinary
course of business to secure the purchase price of such property or to
secure indebtedness incurred solely for the purpose of financing the
acquisition of such property, (ii) liens or security interests
existing on such property at the time of its acquisition, (iii) liens
(other than liens permitted by clause (iv) hereof or replaced with
liens permitted by clause (iv) hereof) in existence on the date hereof
and set forth on Schedule 6(f) hereto, (iv) liens on the Noteholder
Security as defined and described in that certain Intercreditor
Agreement dated as of July 15, 1996 by and among the Guarantor, the
Borrowers, SFFC, Inc., the Agent, the Banks and the Noteholders (as
such term is therein defined) and First Union Bank of Connecticut, as
security trustee for the Noteholders securing Debt outstanding under
one or more series of notes issued pursuant to separate Note Purchase
Agreements dated as of July 15, 1996 between the Guarantor and the
purchasers listed therein, in the aggregate stated principal amount of
$199,707,354, together with any and all Debt used to refinance or
repay such debt so long as the aggregate principal amount thereof is
not increased thereby, provided that the aggregate principal amount of
the indebtedness secured by the liens or security interests referred
to in clauses (i), (ii), (iii) and (iv) above shall not exceed
$300,000,000 at any time outstanding or (v) liens granted to the Agent
on behalf of the Banks.
(j) Dividends, Etc. Not declare or pay any dividends, purchase or
otherwise acquire for value any of its capital stock now or hereafter
outstanding, or make any distribution of assets to its stockholders as
such, or permit any of its subsidiaries to declare or pay any
dividends, purchase or otherwise acquire for value any stock of any
Borrower, except that (i) it may declare and pay dividends on its
$20,000,000 principal amount of its Series C 6.75% Cumulative
Convertible Preferred Stock in an aggregate amount not to exceed
$1,350,000 during any fiscal year and (ii) a Borrower may declare and
deliver dividends and distributions payable in common stock of such
Borrower. Notwithstanding the foregoing, each and every Borrower may
declare or pay dividends, purchase or otherwise acquire for value any
of its capital stock now or hereafter outstanding, or make any
distribution of its assets to stockholders as may be necessary after
taking into account all such other dividends, purchases, acquisitions
and distributions made by any other Borrower to make any and all
payments due (including, without limitation, any and all amounts due
by way of acceleration, required or optional prepayment or otherwise)
in connection with the Guarantor's Debt outstanding under one or more
series of notes issued pursuant to a Note Purchase Agreement dated as
of July 15, 1996 among the Guarantor and the purchasers list
thereunder in the aggregate stated principal amount of $199,707,354,
together with any and all Debt used to refinance or repay such Debt
then outstanding, so long as, in any event, the aggregate principal
amount thereof and interest rate thereon is not increased.
ARTICLE II
CONDITIONS PRECEDENT
SECTION 2.1. Conditions of Effectiveness. This Amendment shall become
effective when, and only when, (a) the Agent shall have received counterparts of
this Amendment executed by each of the parties hereto, (b) all accrued but
unpaid interest, fees and expenses under the terms of the Credit Agreement, as
amended hereby, and all outstanding fees and expenses of counsel to the Agent,
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 (d) the Agent additionally shall have received all of
the following documents, each (unless otherwise indicated) being dated the date
of receipt thereof by the Agent (which date shall be the same for all such
documents), in form and substance satisfactory to the Agent and the Banks:
(i) Copies of (A) all documents evidencing all requisite corporate
action of the Guarantor (including any and all resolutions of the Board of
Directors of the Guarantor) authorizing the execution, delivery and
performance of this Amendment and the matters contemplated hereby and
thereby and (B) all documents evidencing all Governmental Approvals, if
any, with respect to this Amendment and the matters contemplated hereby and
thereby.
(ii) A good standing certificate issued by the Secretary of State of
its incorporation and certificates of qualification to do business as a
foreign corporation for the Guarantor issued by the Secretary of State of
each State in which the Guarantor is required by law to be qualified to do
business, each dated as of a date not more than thirty days prior to the
date hereof.
(iii) A certificate of the Secretary or an Assistant Secretary of the
Guarantor certifying the names and true signatures of the officers
authorized to sign this Amendment on behalf of the Guarantor and any other
documents to be delivered by the Guarantor hereunder.
(iv) A favorable opinion of McGuire, Woods, Boothe & Battle, in form
and substance satisfactory to the Agent and the Banks.
(v) A true, correct and duly executed copy of each Note Purchase
Agreement, each dated July 15, 1996 between the Guarantor and each of the
noteholders (the "Note Agreements") including all schedules and exhibits
thereto and side letters, if any, effecting the terms thereof or otherwise
delivered in connection therewith, together with all amendments and waivers
thereto and any certificates executed in connection therewith accompanied
by an officer's certificate dated the closing date to such effect. The
transactions described in the Note Agreements which are to occur prior to
the closing date shall have been consummated in all material respects in
accordance with the terms and provisions thereof, and no material provision
of the Note Agreements shall have been amended, supplemented or otherwise
modified or waived without the prior written consent of the Banks.
(vi) An Officer's Certificate, 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; 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
(vii) Such other documents, instruments, approvals (and, if required
by the Agent, certified duplicates of executed copies thereof) or opinions
as the Agent or any Bank may reasonably request.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1. Representations and Warranties. (a) The Guarantor hereby
repeats and confirms each of the representations and warranties made by it in
the Guaranty, as amended hereby, as though made on and as of the date hereof,
with each reference therein to "this Agreement", the "Loan Documents", "hereof",
"hereunder", "thereof", "thereunder" and words of like import being deemed to be
a reference to the Guaranty and the Loan Documents, in each case as amended
hereby.
(b) The Guarantor represents and warrants as follows:
(i) The Guarantor is a corporation duly organized, validly existing
and in good standing under the laws of the state of its incorporation and
is duly qualified to do business in, and is in good standing in, all other
jurisdictions where the nature of its business or the nature of property
owned or used by it makes such qualification necessary.
(ii) The execution, delivery and performance by the Guarantor of this
Amendment are within its corporate powers, have been duly authorized by all
necessary corporate action and do not contravene (A) the Guarantor's
charter or by-laws, (B) law or (C) any legal or contractual restriction
binding on or affecting the Guarantor; 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.
(iii) No Governmental Approval is required for the due execution,
delivery and performance by the Guarantor of this Amendment, except for
such Governmental Approvals as have been duly obtained or made and which
are in full force and effect on the date hereof and not subject to appeal.
(iv) This Amendment constitutes the legal, valid and binding
obligations of the Guarantor enforceable against the Guarantor in
accordance with its terms; subject to the qualifications, however, that the
enforcement of the rights and remedies herein is subject to bankruptcy and
other similar laws of general application affecting rights and remedies of
creditors and that the remedy of specific performance or of injunctive
relief is subject to the discretion of the court before which any
proceedings therefor may be brought.
(v) There are no pending or threatened actions, suits or proceedings
affecting the Guarantor or the properties of the Guarantor or any of its
Subsidiaries before any court, governmental agency or arbitrator, that may,
if adversely determined, materially adversely affect the financial
condition, properties, business, operations or prospects of the Guarantor
and it Subsidiaries, considered as a whole, or affect the legality,
validity or enforceability of the Guaranty or any other Loan Document, in
each case as amended by this Amendment.
ARTICLE IV
WAIVER OF COVENANTS
SECTION 4.1. Waiver. Subject to the effectiveness of this Amendment
Agreement, each of the Banks, pursuant to the request of the Guarantor, hereby
waives solely with respect to the period commencing June 30, 1996 and ending on
the Effective Date hereof, the covenants contained in Section 6(d) of the
Guaranty and each of the Banks hereby waives Default Interest for such period.
ARTICLE V
MISCELLANEOUS
SECTION 5.1. Reference to and Effect on the Operative Documents. (a) Upon
the effectiveness of this Amendment, on and after the date hereof each reference
in the Guaranty to "this Agreement", "hereunder", "hereof" or words of like
import referring to the Guaranty and each reference in the other Loan Documents
to "the Guaranty", "thereunder", "thereof" or words of like import referring to
the Guaranty, shall mean and be a reference to the Guaranty, as amended hereby.
(b) Except as specifically amended above, the Credit Agreement, the
Guaranty 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, the Security Documents 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 and the other Loan
Documents.
(c) The execution, delivery and effectiveness of this Amendment shall not,
except as expressly provided herein, operate as a waiver of any right, power or
remedy of any Bank or the Agent under any of the Loan Documents, nor constitute
a waiver of any provision of any of the Loan Documents.
SECTION 5.2. Costs and Expenses. The Guarantor agrees to pay on demand all
costs and expenses incurred by the Agent and the Banks in connection with the
preparation, execution and delivery of this 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 and the
Banks with respect thereto and with respect to advising the Agent and the Banks
as to their rights and responsibilities under this Amendment. The Guarantor
further agrees 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 Banks in connection with the enforcement (whether through
negotiations, legal proceedings or otherwise) of this 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 6.02.
SECTION 5.3. 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 5.4. Governing Law. This Amendment shall be governed by, and
construed in accordance with, the laws of the State of New York.
[Signatures Commence on Next Page.]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
SMITHFIELD FOODS, INC.
By /s/ Aaron D. Trub
Title: Vice President, Secretary &
Treasurer
COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK,
B.A., "RABOBANK NEDERLAND",
NEW YORK BRANCH,
individually and as Agent
By /s/ Joanna M. 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 V. 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 M. Isch
Title: Vice President
FARM CREDIT SERVICES OF THE MIDLANDS, PCA
By /s/ R. Cleary
Title: Vice President
ACCEPTED AND AGREED:
GWALTNEY OF SMITHFIELD, LTD.
By /s/ Aaron D. Trub
Title: Secretary and Treasurer
JOHN MORRELL & CO.
By /s/ Aaron D. Trub
Title: Secretary
THE SMITHFIELD PACKING
COMPANY, INCORPORATED
By /s/ Aaron D. Trub
Title: Secretary and Treasurer
PATRICK CUDAHY INCORPORATED
By /s/ Aaron D. Trub
Title: Secretary
BROWN'S OF CAROLINA, INC.
By /s/ Aaron D. Trub
Title: Secretary and Treasurer
EXECUTION COUNTERPART
AMENDMENT NO. 2 TO GUARANTY
This AMENDMENT AGREEMENT NO. 2 TO GUARANTY (this "Agreement" or this
"Amendment"), dated as of July 29, 1996, is entered into by and between
SMITHFIELD FOODS, INC., a Delaware Corporation (the "Guarantor") and
COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A., "Rabobank Nederland",
New York Branch, 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 Agent and the Banks have entered into that certain Fourth
Amended, Restated and Continued Revolving Credit Agreement dated as of
April 30, 1996 (as so amended hereby and from time to time hereafter, the
"Credit Agreement", the terms defined therein and not otherwise defined
herein being used herein as therein defined) among Gwaltney of Smithfield,
Ltd. ("Gwaltney"), the Smithfield Packing Company, Incorporated
("Packing"), Patrick Cudahy Incorporated ("Cudahy"), Esskay, Inc.
("Esskay"), Brown's of Carolina, Inc.("Brown's") and John Morrell & Co.
("Morrell"; Gwaltney, Packing, Cudahy, Brown's and Morrell being
individually referred to as a "Borrower" and collectively referred to as
the "Borrowers").
(2) Effective June 13, 1996, Esskay was merged into Gwaltney.
(3) Pursuant to that certain Fourth Amended, Restated and Continued
Guaranty dated as of April 30, 1996 made by the Guarantor in favor of the
Agent, as Agent of the Banks (the "Guaranty"), the Guarantor
unconditionally guaranteed the obligations of the Borrowers under the
Credit Agreement.
(4) As requested by the Borrowers and the Guarantor, the Banks have
agreed to amend certain covenants in the Guaranty.
NOW, THEREFORE, in consideration of the premises, the parties hereto
agree as follows:
ARTICLE I
AMENDMENT NO. 2 TO GUARANTY
SECTION 1.1. Amendments to Guaranty The Guaranty 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:
(a) Amendment to Section 6 (a). Clause (a) of Section 6 shall be
amended by deleting the word "and" at the end of subclause (v) thereof,
renumbering subclause (vi) to be subclause (vii) and inserting immediately
after subclause (v) a new subclause (vi) to read as follows:
(vi) at any time at least one Note Purchase Agreement
dated as of July 15, 1996 between the Guarantor and the
purchasers listed thereunder, providing for the purchase of the
Guarantor's Notes in the aggregate stated principal amount of
$199,707,354, is in effect, at the same time required thereby, a
copy of each item required to be furnished by the Guarantor or
any subsidiary pursuant thereto; and
(b) Amendments to Section 6 (d) through (f), (h) and (k). Clauses (d)
through (f) and (h) and (k) of Section 6 shall be amended in their entirety
to read as follows:
(d) Working Capital. Maintain on a consolidated basis at
all times (i) an excess of current assets over current
liabilities, in each case, as determined in accordance with
generally accepted accounting principles ("Working Capital") of
not less than the amount set forth below opposite the applicable
period (it being understood that the period shall include the
ending date thereof):
Period Amount
From 06/30/96 to 07/27/96 $115,000,000
From 07/28/96 to 10/26/96 $110,000,000
From 10/27/96 to 01/25/97 $110,000,000
From 01/26/97 to 04/26/97 $125,000,000
From 04/27/97 to 07/26/97 $115,000,000
From 07/27/97 to 10/25/97 $110,000,000
From 10/26/97 to 01/31/98 $110,000,000
From 02/01/98 to 05/02/98 $125,000,000
From 05/03/98 to 08/01/98 $115,000,000
and (ii) a ratio of current assets to current liabilities, in
each case, as determined in accordance with generally accepted
accounting principles, of not less than the ratios set forth
below opposite the applicable period (it being understood that
the period shall include the ending date thereof):
Period Ratio
From 06/30/96 to 07/27/96 1.25 to 1.0
From 07/28/96 to 10/26/96 1.15 to 1.0
From 10/27/96 to 01/25/97 1.15 to 1.0
From 01/26/97 to 04/26/97 1.30 to 1.0
From 04/27/97 to 07/26/97 1.30 to 1.0
From 07/27/97 to 10/25/97 1.15 to 1.0
From 10/26/97 to 01/31/98 1.15 to 1.0
From 02/01/98 to 05/02/98 1.30 to 1.0
From 05/03/98 to 08/01/98 1.30 to 1.0
(e) Net Worth and Debt. Maintain on a consolidated basis
at all times (i) a Consolidated Tangible Net Worth (as
hereinafter defined) of not less than the higher of
(a) $155,000,000, as of April 30, 1995, plus 75% of Consolidated
Net Income, (without taking into account any losses) on a
cumulative basis for each quarter ending after April 30, 1995 and
(b) the amount set forth below opposite the applicable period (it
being understood that the period shall include the ending date
thereof):
Period Amount
From 06/30/96 to 07/27/96 $185,000,000
From 07/28/96 to 10/26/96 $200,000,000
From 10/27/96 to 01/25/97 $210,000,000
From 01/26/97 to 04/26/97 $220,000,000
From 04/27/97 to 07/26/97 $230,000,000
From 07/27/97 to 10/25/97 $240,000,000
From 10/26/97 to 01/31/98 $250,000,000
From 02/01/98 to 05/02/98 $260,000,000
From 05/03/98 to 08/01/98 $270,000,000
and (ii) a ratio of Debt to Consolidated Tangible Net Worth of
not more than 2.50 to 1.00.
(f) Total Indebtedness to Total Capitalization Ratio.
Permit at any time the aggregate outstanding principal amount of
Consolidated Total Indebtedness to exceed at any time during the
period specified below the percentage of Consolidated Total
Capitalization set forth opposite such applicable period (it
being understood that the period shall include the ending date
thereof):
Period Percentage
From 06/30/96 to 07/27/96 71.0%
From 07/28/96 to 10/26/96 73.0%
From 10/27/96 to 01/25/97 73.0%
From 01/26/97 to 04/26/97 66.0%
From 04/27/97 to 07/26/97 67.0%
From 07/27/97 to 10/25/97 68.0%
From 10/26/97 to 01/31/98 68.0%
From 02/01/98 to 05/02/98 63.0%
From 05/03/98 to 08/01/98 63.0%
; provided, however, that if during the 30-day period prior to
the date of determination the average spot price quoted in the
Wall Street Journal for Iowa/South Minnesota hogs plus $3.00 (or
such other amount which is the average prevailing carcass merit
premium paid by the Borrowers during such period) equals or
exceeds $55 per hundredweight, the percentages shall be equal to
the following for such applicable period:
From 01/26/97 to 04/26/97 69.0%
From 04/27/97 to 07/26/97 69.0%
(h) Fixed Charge Coverage. Maintain at all times a Fixed
Charge Coverage of not less than the amount set forth below for
the consecutive four quarter period ending at the date set forth
opposite such amount:
Quarter Ending Coverage
July 28, 1996 .60
October 27, 1996 .70
January 26, 1997 .85
April 27, 1997 .95
July 27, 1997 and thereafter 1.00
(k) Capital Expenditures. Not incur on a consolidated basis
with its subsidiaries, Capital Expenditures in excess of the amount
for the period set forth below on a cumulative basis for each fiscal
year:
Quarter Ending Amount
July 28, 1996 $25,000,000
October 27, 1996 $35,000,000
January 26, 1997 Permitted Amount
April 27, 1997 Permitted Amount
July 27, 1997 $30,000,000
October 25, 1997 $40,000,000
January 31, 1998 Permitted Amount
May 2, 1998 Permitted Amount
August 1, 1998 $25,000,000
"Permitted Amount" shall mean an amount equal to the sum
(i) year-to-date after tax income plus (ii) year-to-date
depreciation plus (iii) year-to-date amortization, all as
calculated in accordance with generally accepted accounting
principles.
(c) Amendment to Schedule 6(f). Schedule 6(f) to the Guaranty is
deleted in its entirety and the Schedule 6.01(f) attached hereto is
substituted therefor.
ARTICLE II
CONDITIONS PRECEDENT
SECTION 2.1. Conditions of Effectiveness. This Amendment shall
become effective when, and only when, (a) the Agent shall have received
counterparts of this Amendment executed by each of the parties hereto, (b)
all accrued but unpaid interest, fees and expenses under the terms of the
Credit Agreement, as amended hereby, and all outstanding fees and expenses
of counsel to the Agent, 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
(d) the Agent additionally shall have received all of the following
documents, each (unless otherwise indicated) being dated the date of
receipt thereof by the Agent (which date shall be the same for all such
documents), in form and substance satisfactory to the Agent and the Banks:
(i) Copies of (A) all documents evidencing all requisite
corporate action of the Guarantor (including any and all resolutions
of the Board of Directors of the Guarantor) authorizing the execution,
delivery and performance of this Amendment and the matters
contemplated hereby and thereby and (B) all documents evidencing all
Governmental Approvals, if any, with respect to this Amendment and the
matters contemplated hereby and thereby.
(ii) Duly executed copies of the Amendment No. 1 to Guaranty, in
substantially the form of Exhibit A hereto;
(iii) A good standing certificate issued by the Secretary of
State of its incorporation and certificates of qualification to do
business as a foreign corporation for the Guarantor issued by the
Secretary of State of each State in which the Guarantor is required by
law to be qualified to do business, each dated as of a date not more
than thirty days prior to the date hereof.
(iv) A certificate of the Secretary or an Assistant Secretary of
the Guarantor certifying the names and true signatures of the officers
authorized to sign this Amendment on behalf of the Guarantor and any
other documents to be delivered by the Guarantor hereunder.
(v) A favorable opinion of McGuire, Woods, Boothe & Battle, in
form and substance satisfactory to the Agent and the Banks.
(vi) A true, correct and duly executed copy of each Note Purchase
Agreement, each dated July 15, 1996 between the Guarantor and each of
the noteholders (the "Note Agreements") including all schedules and
exhibits thereto and side letters, if any, effecting the terms thereof
or otherwise delivered in connection therewith, together with all
amendments and waivers thereto and any certificates executed in
connection therewith accompanied by an officer's certificate dated the
closing date to such effect. The transactions described in the Note
Agreements which are to occur prior to the closing date shall have
been consummated in all material respects in accordance with the terms
and provisions thereof, and no material provision of the Note
Agreements shall have been amended, supplemented or otherwise modified
or waived without the prior written consent of the Banks.
(vii) An Officer's Certificate, 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; 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
(viii) Such other documents, instruments, approvals (and, if
required by the Agent, certified duplicates of executed copies
thereof) or opinions as the Agent or any Bank may reasonably request.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1. Representations and Warranties. (a) The Guarantor
hereby repeats and confirms each of the representations and warranties made
by it in the Guaranty, as amended hereby, as though made on and as of the
date hereof, with each reference therein to "this Agreement", the "Loan
Documents", "hereof", "hereunder", "thereof", "thereunder" and words of
like import being deemed to be a reference to the Guaranty and the Loan
Documents, in each case as amended hereby.
(b) The Guarantor represents and warrants as follows:
(i) The Guarantor is a corporation duly organized, validly
existing and in good standing under the laws of the state of its
incorporation and is duly qualified to do business in, and is in good
standing in, all other jurisdictions where the nature of its business
or the nature of property owned or used by it makes such qualification
necessary.
(ii) The execution, delivery and performance by the
Guarantor of this Amendment are within its corporate powers, have been
duly authorized by all necessary corporate action and do not
contravene (A) the Guarantor's charter or by-laws, (B) law or (C) any
legal or contractual restriction binding on or affecting the
Guarantor; 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.
(iii) No Governmental Approval is required for the due
execution, delivery and performance by the Guarantor of this
Amendment, except for such Governmental Approvals as have been duly
obtained or made and which are in full force and effect on the date
hereof and not subject to appeal.
(iv) This Amendment constitutes the legal, valid and binding
obligations of the Guarantor enforceable against the Guarantor in
accordance with its terms; subject to the qualifications, however,
that the enforcement of the rights and remedies herein is subject to
bankruptcy and other similar laws of general application affecting
rights and remedies of creditors and that the remedy of specific
performance or of injunctive relief is subject to the discretion of
the court before which any proceedings therefor may be brought.
(v) There are no pending or threatened actions, suits or
proceedings affecting the Guarantor or the properties of the Guarantor
or any of its Subsidiaries before any court, governmental agency or
arbitrator, that may, if adversely determined, materially adversely
affect the financial condition, properties, business, operations or
prospects of the Guarantor and it Subsidiaries, considered as a whole,
or affect the legality, validity or enforceability of the Guaranty or
any other Loan Document, in each case as amended by this Amendment.
ARTICLE IV
WAIVER OF COVENANTS
SECTION 4.1. Waiver. Subject to the effectiveness of this Amendment
Agreement, each of the Banks, pursuant to the request of the Guarantor,
hereby waives solely with respect to the period commencing June 30, 1996
and ending on the Effective Date hereof, the covenants contained in
Section 6(d) of the Guaranty and each of the Banks hereby waives Default
Interest for such period.
ARTICLE V
MISCELLANEOUS
SECTION 5.1. Reference to and Effect on the Operative Documents. (a)
Upon the effectiveness of this Amendment, on and after the date hereof each
reference in the Guaranty to "this Agreement", "hereunder", "hereof" or
words of like import referring to the Guaranty and each reference in the
other Loan Documents to "the Guaranty", "thereunder", "thereof" or words of
like import referring to the Guaranty, shall mean and be a reference to the
Guaranty, as amended hereby.
(b) Except as specifically amended above, the Credit Agreement, the
Guaranty 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, the Security Documents
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
and the other Loan Documents.
(c) The execution, delivery and effectiveness of this Amendment shall
not, except as expressly provided herein, operate as a waiver of any right,
power or remedy of any Bank or the Agent under any of the Loan Documents,
nor constitute a waiver of any provision of any of the Loan Documents.
SECTION 5.2. Costs and Expenses. The Guarantor agrees to pay on
demand all costs and expenses incurred by the Agent and the Banks in
connection with the preparation, execution and delivery of this 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 and the Banks with respect thereto and
with respect to advising the Agent and the Banks as to their rights and
responsibilities under this Amendment. The Guarantor further agrees 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 Banks in connection with the enforcement (whether through negotiations,
legal proceedings or otherwise) of this 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 6.02.
SECTION 5.3. 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 5.4. Governing Law. This Amendment shall be governed by, and
construed in accordance with, the laws of the State of New York.
[Signatures Commence on Next Page.]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed by their respective officers thereunto duly authorized, as of
the date first above written.
SMITHFIELD FOODS, INC.
By /s/ Aaron D. Trub
Title: Vice President, Secretary &
Treasurer
COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK,
B.A., "RABOBANK NEDERLAND",
NEW YORK BRANCH,
individually and as Agent
By /s/ Joanna M. 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
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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 V. 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 M. Isch
Title: Vice President
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FARM CREDIT SERVICES OF
THE MIDLANDS, PCA
By /s/ R. Cleary
Title: Vice President
ACCEPTED AND AGREED:
GWALTNEY OF SMITHFIELD, LTD.
By /s/ Aaron D. Trub
Title: Secretary and Treasurer
JOHN MORRELL & CO.
By /s/ Aaron D. Trub
Title: Secretary
THE SMITHFIELD PACKING
COMPANY, INCORPORATED
By /s/ Aaron D. Trub
Title: Secretary and Treasurer
PATRICK CUDAHY INCORPORATED
By /s/ Aaron D. Trub
Title: Secretary
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BROWN'S OF CAROLINA, INC.
By /s/ Aaron D. Trub
Title: Secretary and Treasurer