EXHIBIT 4.5
CONFORMED COPY
AMENDMENT NO. 3
AMENDMENT NO. 3 dated as of November 12, 1998 among SMITHFIELD
FOODS, INC., a corporation duly organized and validly existing under the laws of
the State of Virginia (the "Borrower"); the SUBSIDIARY GUARANTORS party hereto
(the "Subsidiary Guarantors"); the LENDERS party hereto (the "Lenders"); and THE
CHASE MANHATTAN BANK, as agent for the Lenders (in such capacity, the
"Administrative Agent").
The parties hereto are parties to a Five-Year Credit Agreement
dated as of July 15, 1997 (as amended to and in effect on the date hereof, the
"Credit Agreement"). Capitalized terms used but not otherwise defined herein
have the meanings given them in the Credit Agreement. The parties hereto wish to
amend certain respects, and accordingly, hereby agree as follows:
Section 1. Amendments. Subject to the execution and delivery
hereof by the Borrower, the Subsidiary Guarantors, the Required Lenders and the
Administrative Agent, but effective as of August 3, 1998, the Credit Agreement
is hereby amended as follows:
A. General. All references in the Credit Agreement to the
Credit Agreement (including indirect references) shall be deemed to be
references to the Credit Agreement as amended hereby.
B. Commitments. Section 2.01 of the Credit Agreement shall be
amended to read as follows:
Section 2.01. Commitments. Subject to the terms and conditions
set forth herein, each Lender agrees to make Revolving Loans to the
Borrower from time to time during the Availability Period in an
aggregate principal amount (i) that will not result in such Lender's
Revolving Credit Exposure exceeding such Lender's Commitment and (ii)
that will not result in the sum of the aggregate amount of the
Revolving Credit Exposures of all of the Lenders plus the aggregate
principal amount of all Pari Passu Debt then outstanding plus the
aggregate principal amount (as defined in the definition of "Material
Indebtedness" herein) of the obligations of the Borrower or any of its
Subsidiaries under Hedging Agreements exceeding the Consolidated
Borrowing Base. Within the foregoing limits and subject to the terms
and conditions set forth herein, the Borrower may borrow, prepay and
reborrow Revolving Loans.
C. Investments, Loans, Advances, Guarantees and Acquisitions.
Section 6.04 of the Credit Agreement shall be amended by deleting "and" from the
end of subsection (f) thereof, replacing the period at the end of subsection (g)
thereof with "; and" and adding a new clause, to read as follows:
(h) other Investments by the Borrower or any of its
Subsidiaries in any Person (other than a Subsidiary) principally
engaged in a business in which the Borrower and its Subsidiaries are
permitted by Section 6.03(b) to be engaged, subject always to the
limitation set forth in Section 6.12(f).
D. Financial Covenants. Section 6.12(f) of the Credit
Agreement shall be amended to read as follows:
(f) (1) Except as permitted by Section 6.12(f)(2) below, the
Borrower will not permit the sum (without duplication) of (i) Capital
Expenditures made by the Borrower and its Subsidiaries in any fiscal
year of the Borrower plus (ii) the Aggregate Consideration for all
Acquisitions made by the Borrower and its Subsidiaries in such fiscal
year plus (iii) an amount (not less than zero) equal to any net
increase from the beginning of such fiscal year through the end of such
fiscal year in the aggregate amount of Investments in Joint Ventures
plus (iv) an amount equal to the aggregate amount of Investments made
under Section 6.04(h) in such fiscal year, to exceed the higher of (x)
the sum of Consolidated Net Income plus depreciation for the Borrower
and its Subsidiaries for such fiscal year or (y) $100,000,000.
(2) The sum (without duplication) of (i) Capital Expenditures
made by the Borrower and its Subsidiaries in any fiscal year of the
Borrower plus (ii) the Aggregate Consideration for all Acquisitions
made by the Borrower and its Subsidiaries in such fiscal year plus
(iii) an amount (not less than zero) equal to any net increase from the
beginning of such fiscal year through the end of such fiscal year in
the aggregate amount of Investments in Joint Ventures plus (iv) an
amount equal to the aggregate amount of Investments made under in
Section 6.04(h) in such fiscal year may exceed the limit established by
Section 6.12(f)(1), provided that the aggregate amount of all such
excesses permitted by this Section 6.12(f)(2) for all fiscal years of
the Borrower shall not exceed the Net Cash Proceeds of the Senior
Subordinated Notes received by the Borrower at or prior to the time of
determination.
Section 2. Representations and Warranties. The Borrower hereby
represents and warrants to the Lenders and the Administrative Agent that the
representations and warranties set forth in Article III of the Credit Agreement
are on the date hereof true and complete as if made on and as of such date and
as if each reference in such representations and warranties to the Credit
Agreement included reference to such agreement as amended by this Amendment No.
3.
Section 3. Miscellaneous. Except as herein provided, the
Credit Agreement shall remain unchanged and in full force and effect. This
Amendment No. 3 may be executed in any number of counterparts, all of which
taken together shall constitute one and the same amendatory instrument and any
of the parties hereto may execute this Amendment No. 3 by signing any such
counterpart and sending the same by telecopier, mail messenger or courier to the
Administrative Agent or counsel to the Administrative Agent. This Amendment No.
3 shall be governed by, and construed in accordance with, the law of the State
of New York.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment No. 3 to be duly executed as of the day and year first above written.
SMITHFIELD FOODS, INC.
By /s/ Aaron D. Trub
--------------------------------
Name: Aaron D. Trub
Title: Vice President Chief Financial
Officer Secretary
THE SMITHFIELD PACKING COMPANY,
INCORPORATED
By /s/ Aaron D. Trub
--------------------------------
Name: Aaron D. Trub
Title: Secretary and Treasurer
GWALTNEY OF SMITHFIELD, LTD.
By /s/ Aaron D. Trub
--------------------------
Name: Aaron D. Trub
Title: Secretary and Treasurer
PATRICK CUDAHY INCORPORATED
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 and Treasurer
LYKES MEAT GROUP, INC.
By /s/ Aaron D. Trub
------------------------------
Name: Aaron D. Trub
Title: Secretary and Treasurer
BROWN'S OF CAROLINA, INC.
By /s/ Aaron D. Trub
------------------------------
Name: Aaron D. Trub
Title: Secretary and Treasurer
HANCOCK'S OLD FASHIONED COUNTRY
HAMS, INC.
By /s/ Aaron D. Trub
----------------------------
Name: Aaron D. Trub
Title: Secretary and Treasurer
VALLEYDALE FOODS, INC.
By /s/ Aaron D. Trub
-----------------------------
Name: Aaron D. Trub
Title: Secretary and Treasurer
COPAZ PACKING CORPORATION
By /s/ Aaron D. Trub
-----------------------------
Name: Aaron D. Trub
Title: Secretary and Treasurer
SUNNYLAND, INC.
By /s/ Aaron D. Trub
--------------------------------
Name: Aaron D. Trub
Title: Secretary and Treasurer
SMITHFIELD PACKING-LANDOVER, INC.
By /s/ Aaron D. Trub
-------------------------------
Name: Aaron D. Trub
Title: Secretary and Treasurer
THE CHASE MANHATTAN BANK,
individually and as
Administrative Agent
By /s/ Gary L. Spevak
-------------------------------
Name: Gary L. Spevak
Title: Vice President
COOPERATIEVE CENTRALE RAIFFEISEN -
BOERENLEENBANK B.A. "RABOBANK
NEDERLAND", NEW YORK BRANCH
By /s/ Theodore W. Cox
------------------------------
Name: Theodore W. Cox
Title: Vice President
By /s/ W. Jeffrey Vollack
------------------------------
Name: W. Jeffrey Vollack
Title: Senior Credit Officer
and Senior Vice President
AGRIBANK, FCB
By /s/ J. Hathaway
-----------------------------
Name: J. Hathaway
Title: Director
CREDIT AGRICOLE INDOSUEZ
By /s/ Katherine L. Abbott
----------------------------
Name: Katherine L. Abbott
Title: First Vice President
By /s/ W. Leroy Startz
-----------------------------
Name: W. Leroy Startz
Title: First Vice President
DG BANK, DEUTSCHE
GENOSSENSCHAFTSBANK,
CAYMAN ISLANDS BRANCH
By /s/ Kurt A. Morris
-----------------------------
Name: Kurt A. Morris
Title: Vice President
By /s/ Eric K. Zimmerman
------------------------------
Name: Eric K. Zimmerman
Title: Assistant Treasurer
NATIONSBANK, N.A.
By /s/ Barry P. Sullivan
-----------------------------
Name: Barry P. Sullivan
Title: Vice President
U.S. BANCORP AG CREDIT, INC.
(f/k/a FBS AG CREDIT, INC.)
By /s/ Douglas S. Hoffner
----------------------------
Name: Douglas S. Hoffner
Title: Vice President
SUNTRUST BANK, ATLANTA
By /s/ Robert V. Honeycutt
-----------------------------
Name: Robert V. Honeycutt
Title: Vice President
By /s/ Hugh E. Brown
-----------------------------
Name: Hugh E. Brown
Title: Banking Officer
THE BANK OF TOKYO-MITSUBISHI, LTD.
By_________________________
Name:
Title:
DRESDNER BANK AG, NEW YORK
AND GRAND CAYMAN BRANCHES
By /s/ Deborah Slusarczyk
----------------------------
Name: Deborah Slusarczyk
Title: Vice President
By /s/ A.R. Morris
---------------------------
Name: A. Richard Morris
Title: First Vice President
FARM CREDIT SERVICES OF THE
MIDLANDS, PCA
By /s/ James R. Knuth
-----------------------------
Name: James R. Knuth
Title: Vice President
HARRIS TRUST AND SAVINGS BANK
By /s/ Greg Hennenfent
----------------------------
Name: Greg Hennenfent
Title: Vice President
SANWA BANK LIMITED
By_________________________
Name:
Title:
THE SUMITOMO BANK, LIMITED,
NEW YORK BRANCH
By_________________________
Name:
Title: