EXHIBIT 4.7(A)
JOINT AND SEVERAL GUARANTY
THIS JOINT AND SEVERAL GUARANTY, dated as of July 15, 1996 (as amended or
restated from time to time, this "Guaranty"), by each of Gwaltney of Smithfield,
Ltd., a Delaware corporation (together with its successors and assigns,
"Gwaltney"), John Morrell & Co., a Delaware corporation (together with its
successors and assigns, "Morrell"), The Smithfield Packing Company,
Incorporated, a Virginia corporation (together with its successors and assigns,
"Packing"), SFFC, Inc., a Delaware corporation (together with its successors and
assigns, "SFFC"), Patrick Cudahy Incorporated, a Delaware corporation (together
with its successors and assigns, "Cudahy") and Brown's of Carolina, Inc., a
North Carolina corporation (together with its successors and assigns, "Brown's,"
and together with Gwaltney, Morrell, Packing, SFFC and Cudahy, individually, a
"Guarantor" and collectively, the "Guarantors"), in favor of each of the
Noteholders (as such term is hereinafter defined).
11. PRELIMINARY STATEMENT.
11.1 Smithfield Foods, Inc. (together with its successors and assigns, the
"Company"), a Delaware corporation, has authorized, pursuant to those certain
Note Purchase Agreements (collectively, as may be amended or restated from time
to time, the "Note Purchase Agreement"), each dated as of July 15, 1996, entered
into separately between the Company and, respectively, each of the purchasers of
the Notes named on Annex 1 to the Note Purchase Agreement (the "Purchasers"),
the issuance of:
(a) $2,825,000 in aggregate principal amount of its six and
twenty-four one-hundredths percent (6.24%) Series A Senior Secured Notes
Due November 1, 1998 (as they may be amended, restated or otherwise
modified from time to time, the "Series A Notes," such term to include each
Series A Note delivered from time to time in accordance with any of the
Note Purchase Agreements);
(b) $9,852,942 in aggregate principal amount of its eight and
forty-one one-hundredths percent (8.41%) Series B Senior Secured Notes Due
August 1, 2006 (as they may be amended, restated or otherwise modified from
time to time, the "Series B Notes," such term to include each Series B Note
delivered from time to time in accordance with any of the Note Purchase
Agreements);
(c) $40,000,000 in aggregate principal amount of its eight and
thirty-four one-hundredths percent (8.34%) Series C Senior Secured Notes
Due August 1, 2003 (as they may be amended, restated or otherwise modified
from time to time, the "Series C Notes," such term to include each Series C
Note delivered from time to time in accordance with any of the Note
Purchase Agreements);
(d) $9,000,000 in aggregate principal amount of its nine and eighty
one-hundredths percent (9.80%) Series D Senior Secured Notes Due August 1,
2003 (as they may be amended, restated or otherwise modified from time to
time, the "Series D Notes," such term to include each Series D Note
delivered from time to time in accordance with any of the Note Purchase
Agreements);
(e) $9,250,000 in aggregate principal amount of its ten and seventy
five one-hundredths percent (10.75%) Series E Senior Secured Notes Due
August 1, 2005 (as they may be amended, restated or otherwise modified from
time to time, the "Series E Notes," such term to include each Series E Note
delivered from time to time in accordance with any of the Note Purchase
Agreements);
(f) $100,000,000 in aggregate principal amount of its eight and
fifty-two one-hundredths percent (8.52%) Series F Senior Secured Notes Due
August 1, 2006 (as they may be amended, restated or otherwise modified from
time to time, the "Series F Notes," such term to include each Series F Note
delivered from time to time in accordance with any of the Note Purchase
Agreements);
(g) $14,000,000 in aggregate principal amount of its nine and
eighty-five one-hundredths percent (9.85%) Series G Senior Secured Notes
Due November 1, 2006 (as they may be amended, restated or otherwise
modified from time to time, the "Series G Notes," such term to include each
Series G Note delivered from time to time in accordance with any of the
Note Purchase Agreements); and
(h) $14,779,412 in aggregate principal amount of its eight and
forty-one one-hundredths percent (8.41%) Series H Senior Secured Notes Due
August 1, 2004 (as they may be amended, restated or otherwise modified from
time to time, the "Series H Notes," such term to include each Series H Note
delivered from time to time in accordance with any of the Note Purchase
Agreements).
The Series A Notes, the Series B Notes, the Series C Notes, the Series D Notes,
the Series E Notes, the Series F Notes, the Series G Notes and the Series H
Notes are herein referred to, individually, as a "Note," and collectively, as
the "Notes."
11.2 In order to induce the Purchasers to purchase the Notes, the Company
has agreed, pursuant to the Note Purchase Agreement, that the Guarantors will be
required to guaranty unconditionally all of the obligations of the Company under
and in respect of the Notes and the Note Purchase Agreement pursuant to the
terms and provisions hereof.
11.3 The Guarantors and the Company are operated as part of one
consolidated business entity and are directly dependent upon each other for and
in connection with their respective business activities and their respective
financial resources. Each Guarantor will receive direct and indirect economic,
financial and other benefits from the indebtedness incurred under the Note
Purchase Agreement and the Notes by the Company, and under this Guaranty by such
Guarantor, and the incurrence of such indebtedness is in the best interests of
such Guarantor. The Company and the Guarantors have explicitly induced the
Purchasers to purchase the Notes based on and in reliance on the consolidated
financial condition of the Company and its subsidiaries, including the
Guarantors.
11.4 All acts and proceedings required by law and by the certificates or
articles of incorporation, as the case may be, and bylaws of each Guarantor
necessary to constitute this Guaranty a valid and binding agreement for the uses
and purposes set forth herein in accordance with its terms have been done and
taken, and the execution and delivery hereof has been in all respects duly
authorized by each Guarantor.
12. GUARANTY AND OTHER RIGHTS AND UNDERTAKINGS
12.1 Guarantied Obligations.
Each Guarantor, in consideration of the execution and delivery of the Note
Purchase Agreement by the Purchasers and the purchase of the Notes and/or
exchange of certain promissory notes previously issued by certain of the
Guarantors for the Notes, hereby irrevocably, unconditionally, absolutely,
jointly and severally guarantees, on a continuing basis, to each Noteholder, as
and for such Guarantor's own debt, until final and indefeasible payment has been
made:
(a) the due and punctual payment by the Company of the principal of,
and interest, and the Make-Whole Amount (if any) on, the Notes at any time
outstanding and the due and punctual payment of all other amounts payable,
and all other indebtedness owing, by the Company to the Noteholders under
the Note Purchase Agreement and the Notes, in each case when and as the
same shall become due and payable, whether at maturity, pursuant to
mandatory or optional prepayment, by acceleration or otherwise, all in
accordance with the terms and provisions hereof and thereof; it being the
intent of each Guarantor that the guaranty set forth herein shall be a
continuing guaranty of payment and not a guaranty of collection; and
(b) the punctual and faithful performance, keeping, observance, and
fulfillment by the Company of all duties, agreements, covenants and
obligations of the Company contained in the Note Purchase Agreement and the
Notes.
All of the obligations set forth in subsection (a) and subsection (b) of this
Section 2.1 are referred to herein as the "Guarantied Obligations" and the
guaranty thereof contained herein is referred to herein as the "Unconditional
Guaranty". This Unconditional Guaranty is a primary, original and immediate
obligation of each Guarantor and is an absolute, unconditional, continuing and
irrevocable guaranty of payment and performance and shall remain in full force
and effect until the full, final and indefeasible payment of the Guarantied
Obligations.
12.2 Performance Under the Note Purchase Agreement.
In the event the Company fails to pay, perform, keep, observe, or fulfill
any Guarantied Obligation in the manner provided in the Notes or in the Note
Purchase Agreement, each of the Guarantors shall cause forthwith to be paid the
moneys, or to be performed, kept, observed, or fulfilled each of such
obligations, in respect of which such failure has occurred in accordance with
the terms and provisions of the Note Purchase Agreement and the Notes. In
furtherance of the foregoing, if an Event of Default shall exist, all of the
Guarantied Obligations shall, in the manner and subject to the limitations
provided in the Note Purchase Agreement for the acceleration of the maturity of
the Notes, forthwith become due and payable without notice, regardless of
whether the acceleration of the maturity of the Notes shall be stayed, enjoined,
delayed or otherwise prevented.
12.3 Undertakings in Note Purchase Agreement.
Each of the Guarantors will comply with each of the undertakings of the
Company in the Note Purchase Agreement in respect of which the Company
undertakes to cause the Guarantors (in their capacity as Guarantors and as
Subsidiaries) to comply with such undertakings, as if such undertakings (as they
apply to the Guarantors) were set forth at length herein as the undertakings of
each such Guarantor.
12.4 Releases.
Each of the Guarantors consents and agrees that, without any notice
whatsoever to or by the Guarantors and without impairing, releasing, abating,
deferring, suspending, reducing, terminating or otherwise affecting the
obligations of any of the Guarantors hereunder, each Noteholder, by action or
inaction, may:
(a) compromise or settle, renew or extend the period of duration or
the time for the payment, or discharge the performance of, or may refuse
to, or otherwise not, enforce, or may, by action or inaction, release all
or any one or more parties to, any one or more of this Guaranty, the Notes,
the Note Purchase Agreement, any other guaranty or agreement or instrument
related thereto or hereto;
(b) assign, sell or transfer, or otherwise dispose of, any one or
more of the Notes;
(c) grant waivers, extensions, consents and other indulgences of any
kind whatsoever to the Company or any other guarantor in respect of any one
or more of this Guaranty, the Notes, the Note Purchase Agreement, any other
guaranty or any agreement or instrument related thereto or hereto;
(d) amend, modify or supplement in any manner whatsoever and at any
time (or from time to time) any one or more of the Notes, the Note Purchase
Agreement, any other guaranty or any agreement or instrument related
hereto;
(e) release or substitute any one or more of the endorsers or
guarantors of the Guarantied Obligations, whether parties hereto or not;
and
(f) sell, exchange, release, surrender or enforce, by action or
inaction, any Property at any time pledged or granted as security in
respect of the Guarantied Obligations in accordance with the terms and
conditions of the agreements and instruments pursuant to which such
Property was pledged or granted (as such agreements and instruments may be
amended from time to time, and without any requirement of notice of such
amendment to any Guarantor), whether so pledged or granted by the Company,
any Guarantor or another guarantor of the Company's obligations under the
Note Purchase Agreement, the Notes, any other guaranty or any agreement or
instrument related hereto.
12.5 Waivers.
To the fullest extent permitted by law, each of the Guarantors does hereby
waive:
(a) any notice of
(i) acceptance of this Unconditional Guaranty;
(ii) any purchase of the Notes under the Note Purchase Agreement,
or the creation, existence or acquisition of any of the Guarantied
Obligations, or the amount of the Guarantied Obligations, subject to
the Guarantors' right to make inquiry of each Noteholder to ascertain
the amount of the Guarantied Obligations owing to such Noteholder at
any reasonable time, provided that the Guarantors will look solely to
the Company for the determination of the identities of the
Noteholders;
(iii) any transfer of Notes from one holder to another;
(iv) any adverse change in the financial condition of the Company
or any other fact that might increase, expand or affect any of the
Guarantors' risk hereunder;
(v) presentment for payment, demand, protest, and notice
thereof as to the Notes or any other instrument;
(vi) any Default or Event of Default; and
(vii) any kind or nature whatsoever to which any of the
Guarantors might otherwise be entitled, other than those specifically
required to be given to each of such Guarantors pursuant to the terms
of this Guaranty;
(b) the right by statute or otherwise to require any Noteholder to
institute suit against the Company, any Guarantor, or any other guarantor
or to exhaust the rights and remedies of any Noteholder against the
Company, any Guarantor or any other guarantor;
(c) the benefit of any stay (except in connection with a pending
appeal), valuation, appraisal, redemption or extension law now or at any
time hereafter in force which, but for this waiver, might be applicable to
any sale of Property of any Guarantor made under any judgment, order or
decree based on this Guaranty, and each Guarantor covenants that it will
not at any time insist upon or plead, or in any manner claim or take the
benefit or advantage of such law;
(d) any defense or objection to the absolute, primary, continuing
nature, or the validity, enforceability or amount, of this Unconditional
Guaranty, including, without limitation, any defense based on (and the
primary, continuing nature, and the validity, enforceability and amount, of
this Unconditional Guaranty shall be unaffected by), any of the following:
(i) any change in future conditions;
(ii) any change of law;
(iii) any invalidity or irregularity with respect to the issuance
or assumption of any obligations (including, without limitation, the
Note Purchase Agreement, the Notes or any agreement or instrument
related hereto) by the Company or any other Person;
(iv) the execution and delivery of any agreement at any time
hereafter (including, without limitation, the Note Purchase Agreement,
the Notes or any agreement or instrument related hereto) of the
Company or any other Person,
(v) the genuineness, validity, regularity or enforceability
of any of the Guarantied Obligations;
(vi) any default, failure or delay, willful or otherwise, in
the performance of any obligations by the Company or any Guarantor;
(vii) any creditors' rights, bankruptcy, receivership or other
insolvency proceeding of the Company or any Guarantor, or
sequestration or seizure of any Property of the Company or any
Guarantor, or any merger, consolidation, reorganization, dissolution,
liquidation or winding up or change in corporate constitution or
corporate identity or loss of corporate identity of the Company or any
Guarantor;
(viii) any disability or other defense of the Company or any
Guarantor to payment and performance of all Guarantied Obligations
other than the defense that the Guarantied Obligations shall have been
fully and finally performed and indefeasibly paid;
(ix) the cessation from any cause whatsoever of the liability
of the Company or any Guarantor in respect of the Guarantied
Obligations;
(x) impossibility or illegality of performance on the part of
the Company or any Guarantor under the Note Purchase Agreement, the
Notes or this Guaranty;
(xi) any change in the circumstances of the Company, any
Guarantor or any other Person, whether or not foreseen or foreseeable,
whether or not imputable to the Company or any Guarantor, including,
without limitation, impossibility of performance through fire,
explosion, accident, labor disturbance, floods, droughts, embargoes,
wars (whether or not declared), civil commotions, acts of God or the
public enemy, delays or failure of suppliers or carriers, inability to
obtain materials, economic or political conditions, or any other
causes affecting performance, or any other force majeure, whether or
not beyond the control of the Company or any Guarantor and whether or
not of the kind hereinbefore specified;
(xii) any attachment, claim, demand, charge, Lien, order,
process, encumbrance or any other happening or event or reason,
similar or dissimilar to the foregoing, or any withholding or
diminution at the source, by reason of any taxes, assessments,
expenses, indebtedness, obligations or liabilities of any character,
foreseen or unforeseen, and whether or not valid, incurred by or
against any Person, or any claims, demands, charges, Liens or
encumbrances of any nature, foreseen or unforeseen, incurred by any
Person, or against any sums payable under the Note Purchase Agreement
or the Notes or any agreement or instrument related hereto so that
such sums would be rendered inadequate or would be unavailable to make
the payment as herein provided;
(xiii) any change in the ownership of the equity securities
of the Company, any Guarantor or any other Person liable in respect
of the Notes; or
(xiv) any other action, happening, event or reason whatsoever
that shall delay, interfere with, hinder or prevent, or in any way
adversely affect, the performance by the Company or any Guarantor of
any of its obligations under the Note Purchase Agreement, the Notes or
this Guaranty.
12.6 Certain Waivers of Subrogation, Reimbursement and Indemnity.
Until the Guarantied Obligations have been finally and indefeasibly paid,
none of the Guarantors shall have any right of subrogation, reimbursement, or
indemnity whatsoever in respect of the Guarantied Obligations, and no right of
recourse to or with respect to any assets or Property of the Company or any
other Guarantor.
12.7 Invalid Payments.
To the extent the Company makes a payment or payments to any Noteholder,
which payment or payments or any part thereof are subsequently invalidated,
declared to be fraudulent or preferential, set aside or required, for any of the
foregoing reasons or for any other reason, to be repaid or paid over to a
custodian, trustee, receiver or any other party or officer under any bankruptcy,
reorganization, arrangement, insolvency, readjustment of debt, dissolution or
liquidation law of any jurisdiction, state or federal law, or any common law or
equitable cause, then to the extent of such payment or repayment, the obligation
or part thereof intended to be satisfied shall be revived and continued in full
force and effect as if said payment had not been made and each Guarantor shall
be primarily liable for such obligation.
12.8 Marshaling.
Neither any Noteholder nor any Person acting for the benefit of any
Noteholder shall be under any obligation to marshal any assets in favor of any
of the Guarantors or against or in payment of any or all of the Guarantied
Obligations.
12.9 Subordination.
In the event that, for any reason whatsoever, the Company or a Person
obligated in respect of the Guarantied Obligations pursuant to another
agreement, is now or hereafter becomes indebted to any Guarantor in any manner
(such indebtedness referred to as an "Affiliate Obligation"), the amount of such
Affiliate Obligation, interest thereon, and all other amounts due with respect
thereto, shall, at all times during the existence of a Default or an Event of
Default, be subordinate as to time of payment and in all other respects to all
the Guarantied Obligations, and such Guarantor shall not be entitled to enforce
or receive payment thereof until all sums then due and owing to the Noteholders
in respect of the Guarantied Obligations shall have been paid in full, except
that such Guarantor may enforce (and shall enforce, at the request of the
Required Holders, and at such Guarantor's expense) any obligations in respect of
any such Affiliate Obligation owing to such Guarantor from the Company or such
indebted Person so long as all proceeds in respect of any recovery from such
enforcement shall be held by such Guarantor in trust for the benefit of the
Noteholders, to be paid to the Noteholders as promptly as reasonably possible.
If any other payment, other than pursuant to the immediately preceding sentence,
shall have been made to any Guarantor by the Company or such indebted Person on
any such Affiliate Obligation during any time that a Default or an Event of
Default exists and there are Guarantied Obligations outstanding, such Guarantor
shall hold in trust all such payments for the benefit of the Noteholders, to be
paid to the Noteholders as promptly as reasonably possible.
12.10 Setoff, Counterclaim or Other Deductions.
Except as otherwise required by law, each payment by any one or more of the
Guarantors shall be made without setoff, counterclaim or other deduction.
12.11 Election by Guarantors to Perform Obligations.
Any election by any one or more of the Guarantors to pay or otherwise
perform any of the obligations of the Company under the Notes, the Note Purchase
Agreement or any agreement or instrument related hereto shall not release the
Company, any of the Guarantors or any other guarantor from such obligations or
any of such Person's other obligations under the Notes, the Note Purchase
Agreement or any agreement or instrument related hereto.
12.12 No Election of Remedies by Noteholders.
To the extent provided in the Note Purchase Agreement, each Noteholder
shall, individually or collectively, have the right to seek recourse against
each of the Guarantors to the fullest extent provided for herein for such
Guarantor's obligations under this Guaranty in respect of the Guarantied
Obligations. No election to proceed in one form of action or proceeding, or
against any party, or on any obligation, shall constitute a waiver of such
Noteholder's right to proceed in any other form of action or proceeding or
against other parties unless such Noteholder has expressly waived such right in
writing. Specifically, but without limiting the generality of the foregoing, no
action or proceeding by any Noteholder against the Company or any Guarantor
under any document or instrument evidencing obligations of the Company or any
Guarantor to such Noteholder shall serve to diminish the liability of any
Guarantor under this Guaranty, except to the extent that such Noteholder finally
and unconditionally shall have realized payment by such action or proceeding.
12.13 Separate Action; Other Enforcement Rights.
Each of the rights and remedies granted under this Guaranty to each
Noteholder in respect of the Notes held by such Noteholder may be exercised by
such Noteholder without notice by such Noteholder to, or the consent of or any
other action by, any other Noteholder. Each Noteholder may proceed to protect
and enforce this Unconditional Guaranty by suit or suits or proceedings in
equity, at law or in bankruptcy, and whether for the specific performance of any
covenant or agreement contained herein or in execution or aid of any power
herein granted or for the recovery of judgment for the obligations hereby
guarantied or for the enforcement of any other proper, legal or equitable remedy
available under applicable law.
12.14 Noteholder Setoff.
Each Noteholder shall have, to the fullest extent permitted by law and this
Guaranty, a right of set-off against any and all credits and any and all other
Property of each or all of the Guarantors, now or at any time whatsoever, with
or in the possession of, such Noteholder, or anyone acting for such Noteholder,
to ensure the full performance of any and all obligations of the Guarantors
hereunder.
12.15 Delay or Omission; No Waiver.
No course of dealing on the part of any Noteholder and no delay or failure
on the part of any such Person to exercise any right hereunder shall impair such
right or operate as a waiver of such right or otherwise prejudice such Person's
rights, powers and remedies hereunder. Every right and remedy given by this
Unconditional Guaranty or by law to any Noteholder may be exercised from time to
time as often as may be deemed expedient by such Person.
12.16 Restoration of Rights and Remedies.
If any Noteholder shall have instituted any proceeding to enforce any right
or remedy under this Unconditional Guaranty or under any Note held by such
Noteholder, and such proceeding shall have been dismissed, discontinued or
abandoned for any reason, or shall have been determined adversely to such
Noteholder, then and in every such case each such Noteholder, the Company and
each of the Guarantors shall, except as may be limited or affected by any
determination (including, without limitation, any determination in connection
with any such dismissal) in such proceeding, be restored severally and
respectively to its respective former positions hereunder and thereunder, and
thereafter, subject as aforesaid, the rights and remedies of such Noteholders
shall continue as though no such proceeding had been instituted.
12.17 Cumulative Remedies.
No remedy under this Guaranty, the Note Purchase Agreement or the Notes is
intended to be exclusive of any other remedy, but each and every remedy shall be
cumulative and in addition to any and every other remedy given pursuant to this
Guaranty, the Note Purchase Agreement, the Notes or the other Financing
Documents.
12.18 Limitation on Guarantied Obligations.
Notwithstanding anything in Section 2.1 or elsewhere in this Guaranty or
any other Financing Document to the contrary, the obligations of each Guarantor
under this Guaranty shall at each point in time be limited to an aggregate
amount equal to the greatest amount that would not result in such obligations
being subject to avoidance, or otherwise result in such obligations being
unenforceable, at such time under applicable law (including, without limitation,
to the extent, and only to the extent, applicable to each Guarantor, Section 548
of the Bankruptcy Code of the United States of America and any comparable
provisions of the law of any other jurisdiction, any capital preservation law of
any jurisdiction and any other law of any jurisdiction that at such time limits
the enforceability of the obligations of such Guarantor under this Guaranty).
12.19 Maintenance of Offices.
Each Guarantor will maintain an office at its address set forth in Section
5.3 where notices, presentations and demands in respect of this Guaranty may be
made upon it. Each Guarantor will maintain its office at such address until such
time as such Guarantor shall notify the Noteholders of any change of location of
such office.
12.20 Further Assurances.
Each Guarantor will cooperate with the Noteholders and execute such further
instruments and documents as the Required Holders shall reasonably request to
carry out, to the reasonable satisfaction of the Required Holders, the
transactions contemplated by the Note Purchase Agreements, the Notes, this
Guaranty and the documents and instruments related thereto.
13. INTERPRETATION OF THIS GUARANTY
13.1 Terms Defined.
As used in this Guaranty, capitalized terms have the meaning specified in
the Note Purchase Agreement unless otherwise specified below or set forth in the
section of this Guaranty referred to immediately following such term (such
definitions, unless otherwise expressly provided, to be equally applicable to
both the singular and plural forms of the terms defined):
Affiliate Obligation -- Section 2.9.
Brown's -- has the meaning assigned to such term in the first paragraph
hereof.
Company -- Section 1.1.
Cudahy -- has the meaning assigned to such term in the first paragraph
hereof.
Guaranteeing Subsidiaries -- Section 4.3.
Guarantied Obligations -- Section 2.1.
Guarantor -- has the meaning assigned to such term in the first paragraph
hereof.
Guaranty, this -- has the meaning assigned to such term in the first
paragraph hereof.
Gwaltney -- has the meaning assigned to such term in the first paragraph
hereof.
Morrell -- has the meaning assigned to such term in the first paragraph
hereof.
Note Purchase Agreement -- Section 1.1.
Noteholder -- means, at any time, each Person that is the holder of any
Note at such time.
Notes -- Section 1.1.
Packing -- has the meaning assigned to such term in the first paragraph
hereof.
Purchasers -- Section 1.1.
Series A Notes -- Section 1.1.
Series B Notes -- Section 1.1.
Series C Notes -- Section 1.1.
Series D Notes -- Section 1.1.
Series E Notes -- Section 1.1.
Series F Notes -- Section 1.1.
Series G Notes -- Section 1.1.
Series H Notes -- Section 1.1.
SFFC -- has the meaning assigned to such term in the first paragraph
hereof.
Unconditional Guaranty -- Section 2.1.
13.2 Section Headings and Construction.
(a) 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 Guaranty as a whole and not to any particular
Section or other subdivision. Unless otherwise specified, references to
Sections are to Sections of this Agreement and references to Annexes are to
Annexes to this Agreement.
(b) Construction. Each covenant contained herein shall be construed
(absent an express contrary provision herein) as being independent of each
other covenant contained herein, and compliance with any one covenant shall
not (absent such an express contrary provision) be deemed to excuse
compliance with one or more other covenants.
14. WARRANTIES AND REPRESENTATIONS
Each Guarantor represents and warrants to each Purchaser, as of the date
hereof, as follows:
14.1 Generally.
(a) Such Guarantor is fully aware of the financial condition of the
Company and is delivering this Guaranty based solely upon its own
independent investigation and in no part upon any representation or
statement of any Noteholder with respect thereto. Such Guarantor is in a
position to obtain, and hereby assumes full responsibility for obtaining,
any additional information concerning the financial condition of the
Company as such Guarantor may deem material to its obligations hereunder,
and such Guarantor is not relying upon, nor expecting, any Noteholder to
furnish it any information concerning the financial condition of the
Company.
(b) As of the date of the execution and delivery of this Guaranty, the
fair salable value of the assets of such Guarantor, taken as a whole,
exceeds its liabilities, taken as a whole; such Guarantor is able to pay
and discharge all of its debts (including, without limitation, its current
liabilities) as they become due and after giving effect to the transactions
contemplated by this Guaranty, such Guarantor will not become unable to pay
and discharge such debts as they become due; there are no presently pending
material court or administrative proceedings or undischarged judgments
against the Guarantor; and no tax Liens have been filed or threatened
against such Guarantor, nor is such Guarantor in default or claimed default
under any agreement for borrowed money.
(c) Such Guarantor is a corporation duly organized and validly
existing and in good standing under the laws of its jurisdiction of
incorporation. Such Guarantor has the corporate power to own its Properties
and carry on its business as it is now being conducted. Such Guarantor has
the valid authority and the corporate power to enter into and perform, and
has taken all necessary action to authorize the entry into, and the
performance and delivery of, this Guaranty and the transactions
contemplated hereby.
(d) This Guaranty has been duly authorized by all necessary action on
the part of such Guarantor, has been duly executed and delivered by duly
authorized officers of such Guarantor, and constitutes a legal, valid and
binding obligation of such Guarantor.
(e) The entry into and performance of this Guaranty and the
transactions contemplated hereby do not and will not conflict with any
applicable law or regulation or official or judicial order, conflict with
the articles or certificate of incorporation, or bylaws, of such Guarantor,
conflict with any agreement or document to which such Guarantor is a party
or that is binding upon it or any of its Properties, or result in the
creation or imposition of any Lien on any of its Properties pursuant to the
provisions of any agreement or document.
14.2 Nature of Business of Company and Subsidiaries.
The Company, the Guarantors, and all of the other Subsidiaries are, and
will be, as to financing and capital raising activities, operated as part of one
consolidated business entity and each Guarantor is directly or indirectly
dependent upon each other Guarantor and each other Subsidiary and the Company
for and in connection with its business activities and its financial resources.
The Company and the Subsidiaries have sought and obtained the sale of the Notes
and the related transactions based on their consolidated financial position and
the Company and the Subsidiaries understand that the Purchasers are relying on
the consolidated financial condition of the Company and the Subsidiaries in
purchasing the Notes.
14.3 Solvency.
The fair value of the business and assets of each of the Company and each
of the Guarantors will be in excess of the amount that will be required to pay
its liabilities (including, without limitation, contingent, subordinated,
unmatured and unliquidated liabilities on existing debts, as such liabilities
may become absolute and matured), in each case after giving effect to the
transactions contemplated by this Guaranty and the other the Financing
Documents. Neither the Company nor any Guarantor, after giving effect to the
transactions contemplated by the Financing Documents, will be engaged in any
business or transaction, or about to engage in any business or transaction, for
which such Person has unreasonably small assets or capital (within the meaning
of applicable law, including, without limitation, Section 548 of the United
States Bankruptcy Code), and neither the Company nor any Guarantor has any
intent to
(a) hinder, delay or defraud any entity to which it is, or will
become, on or after the Closing Date, indebted, or
(b) incur debts that would be beyond its ability to pay as they
mature.
15. MISCELLANEOUS
15.1 Successors and Assigns.
(a) Whenever any Guarantor or any of the parties to the Note Purchase
Agreement is referred to, such reference shall be deemed to include the
successors and assigns of such party, and all the covenants, promises and
agreements contained in this Guaranty by or on behalf of any Guarantor
shall bind the successors and assigns of such Guarantor and shall inure to
the benefit of each of the Noteholders from time to time whether so
expressed or not and whether or not an assignment of the rights hereunder
shall have been delivered in connection with any assignment or other
transfer of Notes.
(b) Each of the Guarantors agrees to take such action as may be
reasonably requested by any Noteholder in connection with the transfer of
the Notes of such Noteholder in accordance with the requirements of the
Note Purchase Agreement in connection with providing an executed copy of
this Guaranty to the new Noteholder or Noteholders of such Notes, provided
that no additional obligations of the Guarantors shall thereby be created
but rather that the existing obligations of the Guarantors shall be more
particularly stated in respect of one or more future Noteholders that are
the subject of this Guaranty.
15.2 Partial Invalidity.
The unenforceability or invalidity of any provision or provisions hereof
shall not render any other provision or provisions contained herein
unenforceable or invalid.
15.3 Communications.
(a) Method; Address. All communications hereunder shall be in
writing, shall be delivered in the manner required by the Note Purchase
Agreement, and shall be addressed, if to the Guarantors, at their
respective addresses as set forth in the Note Purchase Agreement, and if
to any of the Noteholders
(i) if such Noteholder is a Purchaser, at the address set forth
on Schedule A to the Note Purchase Agreement for such Noteholder, and
further including any parties referred to on such Schedule A which are
required to receive notices in addition to such Noteholder, and
(ii) if such Noteholder is not a Purchaser, at the address set
forth in the register for the registration and transfer of Notes
maintained pursuant to Section 5.1 of the Note Purchase Agreement for
such Noteholder,
or to any such party at such other address as such party may designate by
notice duly given in accordance with this Section 5.3.
(b) When Given. Any communication so addressed and deposited in the
United States mail, postage prepaid, by registered or certified mail (in
each case, with return receipt requested) shall be deemed to be received on
the third (3rd) succeeding Business Day after the day of such deposit (not
including the date of such deposit). Any communication so addressed and
delivered otherwise shall be deemed to be received when actually received
at the address of the addressee.
15.4 Governing Law.
THIS GUARANTY SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, INTERNAL VIRGINIA LAW, EXCLUDING CHOICE-OF-LAW PROVISIONS OF
SUCH COMMONWEALTH THAT WOULD REQUIRE THE APPLICATION OF THE LAWS OF A
JURISDICTION OTHER THAN SUCH COMMONWEALTH.
15.5 Effective Date.
This Guaranty shall be effective as of the date hereof.
15.6 Benefits of Guaranty Restricted.
Nothing express or implied in this Guaranty is intended or shall be
construed to give to any Person other than the Guarantors, the Noteholders and
the Security Trustee any legal or equitable right, remedy or claim under or in
respect hereof or any covenant, condition or provision herein contained; and all
such covenants, conditions and provisions are and shall be held to be for the
sole and exclusive benefit of the Guarantors, the Noteholders and the Security
Trustee.
15.7 Survival of Representations and Warranties; Entire Agreement.
All representations and warranties contained herein or made in writing by
the Guarantors in connection herewith shall survive the execution and delivery
hereof.
15.8 Expenses.
(a) The Guarantors shall pay when billed the reasonable costs and
expenses (including reasonable attorneys' fees) incurred by the Noteholders
and the Security Trustee in connection with the consideration, negotiation,
preparation or execution of any amendments, waivers, consents, standstill
agreements and other similar agreements with respect hereto (whether or not
any such amendments, waivers, consents, standstill agreements or other
similar agreements are executed).
(b) At any time when any one or more of the Company or the Guarantors
and the Noteholders are conducting restructuring or workout negotiations in
respect hereof, or a Default or Event of Default exists, the Guarantors
shall pay when billed the reasonable costs and expenses (including
reasonable attorneys' fees and the reasonable fees of professional
advisors) incurred by the Noteholders in connection with the assessment,
analysis or enforcement of any rights or remedies that are or may be
available to the Noteholders.
(c) If any of the Guarantors shall fail to pay when due any principal
of, or Make-Whole Amount or interest on, any Note, each of the Guarantors
shall pay to each Noteholder, to the extent permitted by law, such amounts
as shall be sufficient to cover the costs and expenses, including but not
limited to reasonable attorneys' fees, incurred by such Noteholder in
collecting any sums due on the Notes.
15.9 Amendment.
This Guaranty may be amended only in a writing executed by each Guarantor
and the Required Holders.
15.10 Survival.
So long as the Guarantied Obligations and all payment obligations of the
Guarantors hereunder shall not have been fully and finally performed and
indefeasibly paid, the obligations of the Guarantors hereunder shall survive the
transfer and payment of any Note and the payment in full of all the Notes.
15.11 Entire Agreement.
This Guaranty constitutes the final written expression of all of the terms
hereof and is a complete and exclusive statement of those terms.
15.12 Duplicate Originals, Execution in Counterpart.
Two or more duplicate originals hereof 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 Guaranty 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 that, collectively, show
execution by each party hereto shall constitute one duplicate original.
[Remainder of page intentionally blank. Next page is signature page.]
IN WITNESS WHEREOF, each Guarantor has caused this Guaranty to be executed
on its behalf by a duly authorized officer of such Guarantor.
GWALTNEY OF SMITHFIELD, LTD.
By /s/ Aaron D. Trub
Name: Aaron D. Trub
Title: Secretary and Treasurer
JOHN MORRELL & CO.
By /s/ Aaron D. Trub
Name: Aaron D. Trub
Title: Secretary
THE SMITHFIELD PACKING COMPANY,
INCORPORATED
By /s/ Aaron D. Trub
Name: Aaron D. Trub
Title: Secretary and Treasurer
SFFC, INC.
By /s/ David W. Dupert
Name: David W. Dupert
Title: President
PATRICK CUDAHY INCORPORATED
By /s/ Aaron D. Trub
Name: Aaron D. Trub
Title: Secretary
BROWN'S OF CAROLINA, INC.
By /s/ Aaron D. Trub
Name: Aaron D. Trub
Title: Secretary and Treasurer