FIRST AMENDMENT TO CREDIT AGREEMENT
FIRST
AMENDMENT TO CREDIT AGREEMENT
This
FIRST AMENDMENT TO CREDIT AGREEMENT (the " Amendment") dated as of February
27, 2009 among SMITHFIELD FOODS, INC., a Virginia corporation (the
"Borrower"), the lender party hereto (the "Lender") and COÖPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK B.A., "RABOBANK NEDERLAND", NEW YORK BRANCH, as
administrative agent (the "Administrative Agent").
PRELIMINARY STATEMENTS. The
Borrower and Coöperatieve Centrale Raiffeisen-Boerenleenbank B.A., "Rabobank
Nederland", New York Branch, as the only lender and as the Administrative Agent
have entered into a Credit Agreement dated as of August 29, 2008 (as amended,
supplemented or otherwise modified from time to time, the "Credit Agreement";
the terms defined in the Credit Agreement being used herein as therein
defined). Each of the Borrower, Lender and the Administrative Agent
wish to amend the Credit Agreement as hereinafter set forth effective as of the
date hereof.
NOW, THEREFORE, for good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
SECTION
1. Amendments to Section 1.01
of the Credit Agreement. The definition of the terms "Interest
Period" and "LIBO Rate" set forth in Section 1.01 of the Credit Agreement are
each hereby amended in their respective entireties to read as follows and the
definition "London Business Day" is added to Section 1.01 of the Credit
Agreement to read as follows:
"Interest
Period" means, with respect to any Eurodollar Borrowing, the period commencing
on the date of such Borrowing and ending on the day that is one, two, or three
months thereafter, as the Borrower may elect; provided, that (i) if any Interest
Period would end on a day other than a Business Day, such Interest Period shall
be extended to the next succeeding Business Day unless such next succeeding
Business Day would fall in the next calendar month, in which case such Interest
Period shall end on the next preceding Business Day, (ii) any Interest Period
that commences on the last Business Day of a calendar month, shall end on the
last Business Day of the last calendar month of such Interest Period and (iii)
no Interest Period shall extend beyond the Maturity Date. For
purposes hereof, the date of a Borrowing initially shall be the date on which
such Borrowing is made and thereafter shall be the effective date of the most
recent conversion or continuation of such Borrowing.
"LIBO
Rate" means, with respect to any Eurodollar Borrowing for any Interest Period,
the rate appearing on Bloomberg L.P. (the "Service") Page BBAM1/(Official BBA
USD Dollar Libor Fixings) or any successor or substitute page of such Service,
or any successor to or substitute for such Service, providing rate quotations
comparable to those currently provided on such page of such Service, as
determined by the Administrative Agent from time to time for purposes of
providing quotations of interest rates applicable to dollar deposits in an
amount equal to the relevant Borrowing in the London interbank market) at
approximately 11:00 a.m., London time, two London Business Days prior to the
commencement of such Interest Period, as the rate for dollar deposits with a
maturity comparable to such Interest Period. In the event that such
rate is not available at such time for any reason, then the LIBO Rate with
respect to such Eurodollar Borrowing for such Interest Period shall be the rate
(rounded upwards, if necessary, to the next 1/16 of 1%) at
which
dollar deposits of $5,000,000 and for a maturity comparable to such Interest
Period are offered by the principal London office of Rabobank in immediately
available funds in the London interbank market at approximately 11:00 a.m.,
London time, two London Business Days prior to the commencement of such Interest
Period.
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"London
Business Day" means any day that is a day on which dealings in deposits
denominated in Dollars are carried out in the London interbank
market.
SECTION
2. Addition
to Section 1.01 of the Credit Agreement. Section 1.01 of the
Credit Agreement is amended to add the following definition in alphabetical
order thereto:
"Applicable Margin"
means:
(a) with
respect to ABR Borrowings, 3.00%; provided that if after
February 27, 2009 there is a change in the "Applicable Rate" that
applies to "ABR Loans" (as both such quoted terms are defined in the Domestic
Revolving Credit Facility) under the Domestic Revolving Credit Facility and
Rabobank is a party to the Domestic Revolving Credit Facility, then the
Applicable Margin for purposes of this Agreement and ABR Borrowings shall equal
the "Applicable Rate" that applies to "ABR Loans" under the Domestic Revolving
Credit Facility plus 0.50%; and
(b) with
respect to Eurodollar Borrowings, 4.00%; provided that if after
February 27, 2009 there is a change in the "Applicable Rate" that
applies to "Eurocurrency Loans" (as both such quoted terms are defined in the
Domestic Revolving Credit Facility) under the Domestic Revolving Credit Facility
and Rabobank is a party to the Domestic Revolving Credit Facility, then the
Applicable Margin for purposes of this Agreement and Eurodollar Borrowings shall
equal such "Applicable Rate" that applies to such "Eurocurrency Loans" under the
Domestic Revolving Credit Facility plus 0.50%.
SECTION
3. Amendments to Section 2.09
of the Credit Agreement. Clauses (a) and (b) of Section 2.09
of the Credit Agreement are each amended in their respective entireties to read
as follows:
(a) ABR
Borrowings. The Loans comprising each ABR Borrowing shall bear
interest at the Alternate Base Rate plus the Applicable
Margin.
(b) Eurodollar
Borrowings. The Loans comprising each Eurodollar Borrowing
shall bear interest at the Adjusted LIBO Rate for the Interest Period in effect
for such Borrowing plus the Applicable
Margin.
SECTION 4. Ratifications. The
terms and provisions set forth in this Amendment shall modify and supersede all
inconsistent terms and provisions set forth in the Agreement and except as
expressly modified and superseded by this Amendment, the terms and provisions of
the Agreement and the other Loan Documents are ratified and confirmed and shall
continue in full force and effect. Borrower, the Administrative Agent
and the Lender agree that the Agreement as amended hereby and the other Loan
Documents shall continue to be legal, valid, binding and enforceable in
accordance with their respective terms.
SECTION 5. Representations and
Warranties of the Borrower. The Borrower represents and
warrants as follows:
(a) The
representations and warranties contained in Article III of the Credit Agreement,
are true and correct on and as of the date hereof as though made on and as of
the date hereof except with respect to any representations and warranties
limited by their terms to a specific date;
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(b) The
execution, delivery and performance of this Amendment are within the Borrower's
corporate powers and have been duly authorized by all necessary corporate and,
if required, shareholder action. This Amendment has been duly
executed and delivered by the Borrower and constitutes a legal, valid and
binding obligation of the Borrower, enforceable in accordance with its terms,
subject to applicable bankruptcy, insolvency, reorganization, moratorium or
other laws affecting creditors' rights generally and subject to general
principles of equity, regardless of whether considered in a proceeding in equity
or at law;
(c) The
execution, delivery and performance of this Amendment (i) do not require
any consent or approval of, registration or filing with, or any other action by,
any Governmental Authority, (ii) will not violate any applicable law or
regulation or the charter, by-laws or other organizational documents of the
Borrower or any of its Subsidiaries or any order of any Governmental Authority,
(iii) are permitted by the Revolving Credit Facility, the Senior Secured
Notes and the Public Bond Documents and will not otherwise violate or result in
a default under any of the Public Bond Documents, the Revolving Credit Facility,
any of the Senior Secured Notes or any other indenture, agreement or other
instrument binding upon the Borrower or any of its Subsidiaries or its assets,
or give rise to a right thereunder to require any payment to be made by the
Borrower or any of its Subsidiaries, and (iv) will not result in the
creation or imposition of any Lien on any asset of the Borrower or any of its
Subsidiaries; and
(d) No Default nor any Event
of Default exists.
SECTION 6. Reference to and Effect on
the Credit Agreement. On and after the date hereof, each
reference in the Credit Agreement to "this Agreement", "hereunder", "hereof",
"herein" or words of like import shall mean and be a reference to the Credit
Agreement as amended hereby. 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 the Administrative Agent or
any Lender under the Credit Agreement, nor constitute a waiver of any provision
of the Credit Agreement.
SECTION 7. Execution in
Counterparts. This Amendment may be executed in any number of
counterparts and on telecopy or other electronically reproduced 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
agreement.
SECTION 8. Governing
Law. This Amendment shall be construed in accordance with, and
this Amendment and all matters arising out of or relating in any way whatsoever
to this Amendment (whether in contract, tort or otherwise) shall be governed by,
the law of the State of New York, other than those conflict of law provisions
that would defer to the substantive laws of another
jurisdiction. This governing law election has been made by the
parties in reliance (at least in part) on Section 5–1401 of the General
Obligations Law of the State of New York, as amended (as and to the extent
applicable), and other applicable law.
SECTION 9. Final
Agreement. This Amendment represents the final agreement
between the Borrower, the Lender and the Administrative Agent as to the subject
matter hereof and may not be contradicted by evidence of prior, contemporaneous
or subsequent oral agreements of the parties. There are no unwritten
oral agreements between the parties.
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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.
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BORROWER:
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SMITHFIELD
FOODS, INC.
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By:
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/s/
Xxxxx X. Xxxxxx
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Xxxxx
X. Xxxxxx, Vice President Finance
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ADMINISTRATIVE AGENT AND
LENDER:
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COÖPERATIEVE
CENTRALE
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RAIFFEISEN-BOERENLEENBANK
B.A.,
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RABOBANK
NEDERLAND", NEW
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YORK
BRANCH, as Administrative Agent and
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sole
Lender
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By:
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/s/
Xxxxx X. Kenwood
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Xxxxx
X. Kenwood, Executive Director
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By:
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/s/
Xxxxxxx Xxxxxx
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Xxxxxxx
Xxxxxx, Executive Director
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