EXHIBIT 4.6
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[EXECUTION COUNTERPART]
SECOND AMENDMENT
OF CREDIT AGREEMENT
This SECOND AMENDMENT OF CREDIT AGREEMENT (this "Agreement" or this
"Second Amendment"), dated as of January 15, 1997, 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"), JOHN MORRELL & CO., a Delaware
Corporation ("Morrell"), LYKES MEAT GROUP, INC., a Delaware corporation
("Lykes") and SUNNYLAND, INC., a Georgia corporation ("Sunnyland"; Gwaltney,
Packing, Cudahy, Brown's, Morrell, Lykes and Sunnyland 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").
PRELIMINARY STATEMENTS
(1) The Borrowers (other than Lykes and Sunnyland), the Agent and the
Banks (other than AgriBank FCB ("AgriBank") and FBS Ag Credit, Inc. ("FBS"))
have entered into a Fourth Amended, Restated and Continued Credit Agreement,
dated as of April 30, 1996, as amended by the First Amendment, dated as of July
29, 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) The parties hereto desire to amend the Credit Agreement to (i) add
Lykes and Sunnyland as Borrowers, (ii) add AgriBank and FBS as Banks, (iii)
remove Farm Credit Services of the Midlands, PCA ("Farm Credit") as a Bank and
(iv) increase the Facility A Commitment and the Facility B Commitment.
NOW, THEREFORE, in consideration of the premises, the parties hereto
agree as follows:
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ARTICLE I
AMENDMENT OF CREDIT AGREEMENT
SECTION 1.01. Amendment of Credit Agreement.
(a) The Credit Agreement shall be, effective as of the date
hereof, amended as follows:
(i) The opening recital of the Credit Agreement is hereby
amended by deleting the parenthetical phrase after the words "JOHN
MORRELL & CO., a Delaware corporation" and substituting therefor the
following:
("Morrell"), LYKES MEAT GROUP, INC., a Delaware corporation
("Lykes") and SUNNYLAND, INC., a Georgia corporation
("Sunnyland"; Gwaltney, Packing, Cudahy, Brown's, Morrell,
Lykes and Sunnyland being individually referred to as a
"Borrower" and collectively referred to as the "Borrowers"),
(ii) Section 1.01(a) of the Credit Agreement is hereby
amended by replacing, in each case, the dollar amount "$205,000,000"
with the dollar amount "$225,000,000".
(iii) Section 1.01(b) of the Credit Agreement is hereby
amended by replacing, in each case, the dollar amount "$50,000,000"
with the dollar amount "$75,000,000".
(iv) Section 1.04(a) of the Credit Agreement is hereby
amended by replacing the words "and Exhibit A-6 (as to Morrell)" in the
first sentence thereof, with the words", Exhibit A-6 (as to Morrell),
Exhibit A-7 (as to Lykes) and Exhibit A-8 (as to Sunnyland)".
(v) The definitions of "Security Agreement" and "Security
Agreements" in Section 3.01(c) of the Credit Agreement are hereby
amended to include each of the Security Agreements to be executed by
Lykes and Sunnyland pursuant to Section 3.01(iv) hereof.
(vi) Annex I, Schedule 5.01(e) and Schedule 6.01(d) to the
Credit Agreement are hereby deleted in their entirety and Annex I,
Schedule 5.01(e) and Schedule 6.01(d) in the forms attached hereto are
substituted therefor.
(vii) The Exhibits to the Credit Agreement are hereby
amended by renumbering Exhibit B as Exhibit B-1 and adding new Exhibits
A-7, A-8 and B-2 in the forms attached hereto.
ARTICLE II
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ADDITION AND REMOVAL OF PARTIES
SECTION 2.01. Agreements of New Parties. Each of Lykes and Sunnyland
hereby agrees to be bound by the terms and conditions of the Credit Agreement as
Borrowers thereunder with the same force and effect as if each such party had
been an original party thereto. Each of Lykes and Sunnyland, as Borrowers under
the Credit Agreement, hereby makes the representations, warranties and covenants
set forth in Articles IV and V of the Credit Agreement to the Banks, including
AgriBank and FBS, with the same force and effect as if each of Lykes and
Sunnyland had been an original party to the Credit Agreement. Each of AgriBank
and FBS hereby agrees to be bound by the terms and conditions of the Credit
Agreement as a Bank thereunder with the same force and effect as if each had
been an original party thereto.
SECTION 2.02. Removal of Farm Credit. Each of the parties hereto hereby
agrees that from and after the effective date of this Amendment the rights and
obligations of Farm Credit under the Credit Agreement shall be terminated. On
the effective date of this Amendment the Banks, including AgriBank and FBS,
shall pay to Farm Credit an amount, in immediately available funds, equal to the
outstanding amount of Farm Credit's Commitment on such date, together with
accrued but unpaid interest thereon and fees, if any, related thereto.
ARTICLE III
CONDITIONS PRECEDENT
SECTION 3.01. Conditions of Effectiveness. This Second Amendment shall
become effective on the date when, and only when, (a) the Agent shall have
received counterparts of this Second 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, (c) the representations and
warranties contained herein shall be true on and as of the date of the
effectiveness of this Second 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 October 27, 1996, and each
of the Borrowers is in compliance with its Borrowing Base requirements; and (d)
the Agent 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 Banks:
(i) Cancelled Facility A Notes and Facility B Notes issued
under the Credit Agreement on April 30, 1996;
(ii) Duly executed Facility A Notes and Facility B Notes
issued under the Credit Agreement, as amended hereby, by each of the
Borrowers;
(iii) A guaranty, duly executed by Lykes, in substantially
the form of Exhibit B-2 attached hereto;
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(iv) A Security Agreement dated as of the date hereof duly
executed by each of Lykes and Sunnyland, in substantially the form of
Exhibit J-2 to the Credit Agreement, in favor of the Agent on behalf of
the Banks (the "New Borrower Security Agreements"), together with:
(a) Acknowledgment copies of proper Financing
Statements (Form UCC-1 or equivalent forms) duly filed under
the Uniform Commercial Code of all jurisdictions as may be
necessary or, in the opinion of the Agent, desirable to
perfect the security interests created by the New Borrower
Security Agreements,
(b) Certified copies of Requests for Information or
Copies (Form UCC-11), or equivalent reports, listing the
Financing Statements referred to in paragraph (a) above and
all other effective financing statements which name each
such Borrower (under its present name and any previous name)
as debtor and which are filed in the jurisdictions referred
to in said paragraph (a), together with copies of such other
financing statements (none of which shall cover the
collateral purported to be covered by the New Borrower
Security Agreements),
(c) Evidence of the insurance required by the terms
of the New Borrower Security Agreements,
(d) Evidence that all other actions necessary or,
in the opinion of the Agent, desirable to perfect and
protect the security interests created by the New Borrower
Security Agreements have been taken;
(v) 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 Second Amendment and the matters
contemplated hereby, certified by the Secretary or Assistant Secretary
of each Borrower;
(vi) A certificate of the Secretary or an Assistant
Secretary of each of Lykes and Sunnyland certifying the names and true
signatures of the officers of such Borrower authorized to sign each
Loan Document to which it is a party and the other documents to be
delivered by it hereunder;
(vii) A favorable opinion of McGuire, Woods, Battle & Boothe
LLP, special counsel for the Borrowers, in form and substance
satisfactory to the Agent and the Banks and with respect to, without
limitation, the enforceability of this Second Amendment and the Notes
and the Security Agreements being delivered herewith and the perfection
of the security interests of the Agent, on behalf of the Banks, granted
in such Security Agreements upon the filing in specified jurisdictions
of the forms UCC-1 or equivalent forms prepared in connection herewith,
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(viii) 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
November 4, 1996, with respect to Lykes and Sunnyland and October 27,
1996 with respect to Borrowers other than Lykes and Sunnyland; and the
Borrowers are in compliance with the Borrowing Base requirements; and
(ix) 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 IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrowers. (a) Each
of the Borrowers (other than Lykes and Sunnyland) 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 (including Lykes and Sunnyland)
further represents and warrants as follows:
(i) The execution, delivery and performance by such Borrower
of this Second Amendment and the Notes executed in connection herewith
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
(other than Liens contemplated by this Second Amendment).
(ii) No governmental approval is required for the due
execution, delivery and performance by such Borrower of this Second
Amendment.
(iii) This Second Amendment and the Notes in connection
herewith each constitutes the legal, valid and binding obligations of
such Borrower enforceable against such Borrower in accordance with its
terms.
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ARTICLE V
CONFIRMATION OF SECURITY AGREEMENTS
SECTION 5.01. Confirmation of Security Agreements. Each Borrower (other
than Lykes and Sunnyland) as a Grantor under its Security Agreement, hereby
consents and agrees to this Second Amendment. Each such Borrower hereby confirms
and agrees that its Security Agreement is, and shall continue to be, in full
force and effect and is hereby ratified and confirmed in all respects, except
each reference in each such Borrower's Security Agreement to "the Credit
Agreement", "thereunder", "thereof" or words of like import shall mean and be a
reference to Credit Agreement, as amended by this Second Amendment. Each such
Borrower agrees that no consent or acknowledgment by such Borrower 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 Security Agreement.
ARTICLE VI
MISCELLANEOUS
SECTION 6.01. Reference to and Effect on the Loan Documents. (a) Upon
the effectiveness of this Second 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 Second 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 6.02. 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 Second 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 Second Amendment.
The Borrowers
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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 Banks in connection with the enforcement
(whether through negotiations, legal proceedings or otherwise) of this Second
Amendment, the Credit Agreement as amended hereby 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 6.03. Execution in Counterparts. This Second 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 6.04. Governing Law. This Second Amendment shall be governed
by, and construed in accordance with, the laws of the State of New York (without
giving effect to its conflicts of laws principles).
[Signatures on the next page]
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IN WITNESS WHEREOF, the parties hereto have caused this Second
Amendment to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
GWALTNEY OF SMITHFIELD, LTD.
Aaron D. Trub
Secretary
THE SMITHFIELD PACKING
COMPANY, INCORPORATED
Aaron D. Trub
Secretary
PATRICK CUDAHY INCORPORATED
Aaron D. Trub
Secretary
BROWN'S OF CAROLINA, INC.
Aaron D. Trub
Secretary
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JOHN MORRELL & CO.
Aaron D. Trub
Secretary
LYKES MEAT GROUP, INC.
Aaron D. Trub
Vice President
SUNNYLAND, INC.
Aaron D. Trub
Vice President
COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK,
B.A., "RABOBANK NEDERLAND",
NEW YORK BRANCH,
individually and as Agent
Joanna Solowski
Authorized Officer
[signature not legible]
Authorized Officer
NATIONSBANK, N.A.
Michael R. Heredia
Vice President
DG BANK, DEUTSCHE
GENOSSENSCHAFTSBANK,
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CAYMAN ISLANDS BRANCH
J. W. Somers
S.V.P. and Manager
William J. Bartlett
A.V.P.
THE SUMITOMO BANK, LIMITED,
NEW YORK BRANCH
[signature not readable]
Joint General Manager
SUNTRUST BANK, ATLANTA
Robert V. Hoyatt
A.V.P.
Gregory L. Cannon
Vice President
CAISSE NATIONALE DE CREDIT
AGRICOLE
W. Leroy Startz
First Vice President
BOATMEN'S NATIONAL BANK
Ellen Isch
Vice President
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FARM CREDIT SERVICES OF THE
MIDLANDS, PCA
James R. Knuth
Vice President
FBS AG CREDIT, INC.
Kenneth L. Warlich
Vice President
AGRIBANK FCB
Alfred S. Compton
Senior Lending Officer
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CONFIRMATION OF GUARANTY
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 (the "Guaranty") hereby consents and agrees to the foregoing
Second Amendment of Credit Agreement, dated as of January 15, 1997. The
undersigned hereby confirms and agrees that (i) the Guaranty is, and shall
continue to be, in full force and effect and is hereby ratified and confirmed in
all respects; (ii) all representations and warranties made by the undersigned in
the Guaranty are hereby ratified and confirmed as if made on the date hereof;
(iii) on the date hereof no Default or Event of Default (as each term is defined
in the Guaranty), or event which with the passing of time or giving of notice
would become a Default or Event of Default, has occurred or is continuing; and
(iv) upon the effectiveness of such Second 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 Second 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.
Name: Aaron D. Trub
Title: Vice President, Secretary
and Treasurer